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Roberts v. Southern Pacific Transportation Company3/22/2001
cab company. It was for the jury to weigh credibility of the witnesses, draw conclusions as to the facts proved and select the inferences it considered most reasonable. St. Louis Southwestern Ry. Co. v. Greene, 552 S.W.2d 880,883 (Tex. Civ. App.--Texarkana 1977, no writ). This Court is not free in an FELA case to set aside a jury verdict merely because the inferences are weak or one inference appears more reasonable than another or that the same inference may support contrary conclusions. Id.
With only some evidence of some contractual relationship between SOPAC and the cab company, and without any evidence that the commute from the hotel to work was a necessary function of the railroad's business, Roberts failed to show that the services of the cab were performed pursuant to contract as part of the operational activities of the railroad. On the basis of the testimony we must conclude that there is some evidence of probative force to support the jury's finding that SOPAC was not negligent. We overrule Roberts' contentions in issue one that the evidence was legally insufficient to support the jury's findings of no negligence on the part of SOPAC.
THE JURY CHARGE
In his second issue, Roberts contends the trial court abused its discretion in refusing his requested question as to whether the cab company was the railroad's agent under FELA. The requested question was:
Do you find by a preponderance of the evidence that Yellow Checker Cab Company of Shreveport and Bossier City, Inc. was performing an integral operational activityof the Southern Pacific Transportation Company pursuant to an agreement at the time of the event for which this complaint has been made.
The refused question was made a part of the clerk's record in this case. Roberts argues that there was some evidence to support the question and he was entitled to have it submitted.
As we pointed out under issue one, appellant had the burden to prove: (1) the existence of a contract between the employer and the alleged agent, and (2) the performance of the employer's operational activities by the alleged agent. Sinkler, 78 S.Ct. at 762. He did neither. The only evidence presented concerning the contract was the unsubstantiated and uncertain opinions of Roberts and Waits that the railroad had some kind of "deal" with the cab company to cut fares for railroad employees. We found that such testimony was some evidence of the contract prong of Sinkler which the jury could consider in determining whether there was any negligence on the part of SOPAC. However, there was no evidence of "performance of the employer's operational activities" introduced. See Sinkler, 78 S.Ct. at 762. Because Roberts produced no evidence that his use of the cab was part of SOPAC's operational activities, we find there was no evidence to support the submission of the requested question and the trial court did not abuse its discretion in refusing it. See Dion v. Ford Motor Co., 804 S.W.2d 302, 310 (Tex. App.--Eastland 1991, writ denied). The trial court is only required to submit questions to the jury on material issues raised by the pleadings and the evidence. TEX. R. CIV. P. 278; Dion, 804 S.W.2d at 310. We overrule Roberts' contentions in issue two that the trial court abused its discretion in refusing his proposed agency jury question. We find the trial court did not err in entering judgment for SOPAC and denying Roberts' motion for new trial.
We affirm the judgment of the trial court.
Judgment rendered and Opinion filed March 22, 2001.
Publish
TEX. R. APP. P. 47.3(b).
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