Longoria v. Violet Gin Company

W. O. MURRAY, Chief Justice.

This suit was instituted by Guadalupe Z. Longoria against the Violet Gin Company and G. C. Kay Company, seeking to recover damages for personal injuries sustained by him when struck by a falling piece of corrugated sheet metal while working as an employee of E. O. Ross Gin & Elevator Service on the premises of Violet Gin Company. Longoria alleged that his injuries were proximately caused by the *485negligence of O. M. Cantu, an employee of Violet Gin Company, in handling pieces of sheet metal at the time of the injury. In the alternative, Longoria alleged that Cantu was the employee of G. C. Kay Company, acting within the scope of his employment, and that the injury was proximately caused by Cantu’s negligence as the agent of G. C. Kay Company. Longoria prayed for recovery of his damages against Violet Gin Company and alternatively against G. C. Kay Company, but not against both defendants as joint tort-feasors. In his pleadings, Longoria acknowledged that Houston American Insurance Company was entitled to subrogation of a part of his claim, but the subrogation does not enter into the question raised by this appeal and need not further be mentioned.

The trial was to a jury, and upon conclusion of the evidence the trial court peremptorily instructed the jury to return a general verdict for each of the defendants, and upon such' verdict rendered judgment that plaintiff take nothing, from which judgment Guadalupe Z. Longoria has prosecuted this appeal.

The first question presented by this appeal is whether there was sufficient evidence to raise a jury question as to the agency and course of employment of O. M. Cantu. Appellant alleged that Cantu was the agent, employee or servant of Jerome Jalufka, doing business under the trade name of Violet Gin Company, or, in the alternative, that Cantu was the agent, employee or servant of G. C. Kay, doing business under the trade name of G. C. Kay Company. There is no evidence that Cantu was the agent, servant or employee of G. C. Kay. In fact, appellant does not even contend that there is such evidence. Appellant made demand for four admissions, under Rule 169, Texas Rules of Civil Procedure, upon Jerome Jalufka with reference to Cantu being his employee. Jalufka did not answer the first demand and his answers to the other three were evasive. Therefore, we hold that appellant was entitled to the four following admissions:

1. That Violet Gin Company had on its payroll on May 24, 1955, a man by the name of O. M. Cantu.
2. That O. M. Cantu was present on the Violet Gin Company’s gin plant premises in or near the town of Violet, Texas, on the morning of May 24, 1955.
3. That O. M. Cantu was working on such gin plant premises on the morning of May 24, 1955.
4. That Violet Gin Company paid O. M. Cantu wages for work done by him on the gin plant premises of Violet Gin Company on May 24, 1955.

Other than the above admissions there is very little evidence in the record indicating that O. M. Cantu was the agent, servant or employee of Violet Gin Company and in the course of his employment at the time Longoria was injured, but we will assume, without deciding, that such was the case.

Appellant next contends that the evidence was sufficient to raise the issue of negligence on the part of Jerome Jalufka, which was the proximate cause of his injuries. We do not agree.

The first witness called by appellant was Urbano Molino. He testified that Guadalupe Longoria was his father-in-law. Longoria was a welder and Molino was his helper. They were both working upon the premises of Violet Gin Company on the morning of May 24, 1955, for one E. O. Ross. At about 8 A.M. on that morning Molino went around in front of the welding machine to crank it and was having some trouble getting it started. Longoria started around on the south side of the machine to choke it when he was injured. Molino did not see what happened but immediately thereafter he heard Longoria say he was injured; he looked up and saw blood upon Longoria’s wrist and also saw O. M. Cantu standing on top of the middle or second stack of corrugated sheet metal holding one or more sheets in his two hands, the sheets resting on the stack. The three *486stacks of sheet metal were parallel to the welding machine. One stack was between Cantu and appellant, and the other stack was beyond Cantu. Longoria was struck by a sheet of corrugated metal, but Molino did not see where it came from or what caused it to strike appellant, tie estimated that Cantu was some nine feet from appellant.

Appellant testified to almost the identical facts. He did not see where the sheet iron came from that struck him. He looked up after he was struck and saw Cantu standing on the middle stack of sheet metal, holding one or more sheets in his hands, with the ends resting on the same stack upon which Cantu was standing, with his hands holding the edges of the sheets about one-third down from the top, and the sheet or sheets resting at about 85 degrees from the horizontal. Cantu was facing east, as was appellant. He did not see where the sheet iron came from that struck him.

In addition to Violet Gin Company, the E. O. Ross Gin & Elevator Service, the G. C. Kay Company, and another contractor were doing work upon the Violet Gin Company’s premises. The G. C. Kay Company, at the time of the accident, was either repairing or building a grain elevator on the premises, near where Longoria was injured. The sheet metal was being used in connection with the building or repairing of the grain elevator. Violet Gin Company agreed to and had secured the sheet iron.

Appellant did not call O. M. Cantu as a witness or attempt to show any reason why he did not do so. There was no evidence that at the time of the trial Cantu was in the employment of the Violet Gin Company. Under such circumstances it will be presumed that the testimony of Cantu would not have been helpful to appellant. 1 McCormick and Ray, p. 138, Sec. 100, 2d Edition. Before appellant will be permitted to rely upon the doctrine of res ipsa loquitur he must produce all available evidence or show why he cannot do so. Alley v. Texas Electric Service Co., Tex.Civ.App., 134 S.W.2d 762.

The evidence was insufficient to invoke the doctrine of res ipsa loquitur, in that it fails to show that the injury could only have occurred by the negligence of Jerome Jalufka or one of his agent, employees or servants. McClish v. R. C. Young Feed & Seed Co., Tex.Civ.App., 225 S.W.2d 910; Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791; Comet Motor Freight Lines v. Holmes, Tex.Civ.App., 175 S.W.2d 464; Montgomery Ward & Co. v. Sewell, 5 Cir., 205 F.2d 463, 38 Am.Jur. 996; Alley v. Texas Electric Service Co., Tex.Civ.App., 134 S.W.2d 762; Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659.

There is no testimony that the sheet of corrugated iron which struck Longoria came from the hands of Cantu. It is a fair deduction that if Cantu, who was facing east, had turned loose of the sheets that he was holding they would have fallen back on the stack of sheet iron on which he was standing, unless carried south by some new and intervening force. There is evidence, introduced by appellee, that there was a wind of from fifteen to seventeen miles per hour blowing on the morning of the injury, but appellant does not even contend that the sheet which struck him was carried to the south by the wind.

Appellant alleged six specific acts of negligence, as follows:

(1) Cantu “attempted to raise such large pieces of corrugated sheet iron from the ground without having secured a proper grip thereon;”
(2) Cantu “attempted to pick up from the ground more than one piece of such corrugated sheet iron at one time;”
(3) Cantu “attempted to pick up and raise from the ground two or more pieces of such corrugated sheet iron at one time, when they were stacked one upon the other;”
*487(4) Cantu “attempted to carry more than one piece of corrugated sheet iron at one time, without having first secured a sufficient grip thereon;”
(5) Cantu “while attempting to raise and pick up said corrugated sheet iron from the ground, permitted same to slip from his grasp and strike plaintiff;”
(6) Cantu “while attempting to carry said corrugated sheet iron, permitted same to slip from his grasp or grip and to strike plaintiff.”

There is simply no evidence that Cantu was guilty of any specific act or acts of negligence. There is no evidence that Cantu did anything that a reasonably prudent person would not have done under the same or similar circumstances. Nor is there any evidence that he failed to do anything that a reasonably prudent man would have done under the same or similar circumstances.

There being no evidence to support any specific acts of negligence, and appellant having failed to establish liability under the doctrine of res ipsa loquitur, the trial court properly gave an instructed verdict.

The judgment against G. C. Kay Company must also be affirmed, as appellant does not even contend that he made out a prima facie case against G. C. Kay Company.

The judgment of the trial court is affirmed.