70 S.W.2d 758 | Tex. App. | 1934
This suit was instituted by appellants, Mrs. C. S. Allen, surviving wife of C. S. Allen, deceased, and her six children, against appellee, Texas New Orleans Railroad Company, to recover damages for the death of said husband and father, which they alleged was caused by the negligence of appellee. Appellee's railroad runs north and south along one of the streets of the city of Calvert. Said street is intersected at right angles by Burnett street, which runs east and west. The deceased, C. S. Allen, was attempting to cross from the west to the east side of appellee's track at the Burnett street crossing, when he was struck by the engine of a south-bound freight train and instantly killed.
The case was submitted on special issues, in response to which the jury found, in substance, that:
(a) Appellee's train was at the time of the accident being operated at a rate of speed prohibited by the ordinances of said city.
(b) Appellee's employees failed to exercise ordinary care in the rate of speed at which they operated the same.
(c) Appellee negligently failed to keep its Burnett street crossing in repair.
(d) None of such acts of negligence was the proximate cause of the death of said Allen.
All other acts of negligence charged against appellee were found in its favor. The jury further found, in substance, that said Allen was guilty of negligence proximately causing or contributing to his death, as follows:
(a) He failed to exercise ordinary care to discover the approach of the train.
(b) He failed to exercise ordinary care to keep a lookout to discover such approach.
(c) He failed to exercise ordinary care to avoid being struck by the train after he discovered its approach.
(d) He failed to exercise ordinary care in listening for the approach of a train before going on the crossing.
(e) Such negligence proximately caused or contributed to cause his death.
Various other acts of said Allen were found by the jury to have been negligent, but not, with two or three exceptions, the proximate cause of his death. The jury also found that the accident was not unavoidable, and assessed damages in favor of the surviving widow in the sum of $6,000 and in favor of a widowed daughter in the sum of $2,000. The court rendered judgment on the verdict that appellants take nothing by their suit and that the appellee recover its costs.
Appellants present an assignment in which they contend that the court erred in overruling their objection to certain statements made by one of appellee's attorneys in his argument to the jury. The deceased was killed while attempting to cross from the west to the east side of appellee's track at a regular street crossing. Appellants alleged in their petition that the deceased stepped in a hole or caught his foot under the west rail of the track and fell across it, and was in that position when struck by the engine. They introduced testimony tending to support such allegation, but the testimony on such issue as a whole was conflicting. Appellants' witness Blasienz testified that the first blood stains were four or five feet south of the street crossing; that the body was found farther down the track; and that clothing was scattered from about the middle of the crossing toward the body. Appellee objected to the testimony just recited on the ground that it tended to show mutilation of the body, but the court overruled the objection. No further testimony along this line was offered. There was no testimony introduced with reference to the position of the feet of the deceased. The Honorable H. A. Bush made the closing argument in the case for appellee, and stated therein: "They say that Mr. Allen either stumbled in a hole or that he hung his foot under that rail and fell prone across the track. I am going to tell you, gentlemen of the jury, that it didn't happen that way. If Mr. Allen had hung his toe under that rail and fallen across that track, those wheels would have cut his feet off and left them on the west side. There is not a bit of testimony on the part of the plaintiffs (appellants) that Mr. Allen's feet, if they say he fell across those tracks, if they put their case on the fact that he fell down under those wheels, were on the west side of the track."
Appellants objected to said statement on the ground that the same constituted an unfair and prejudicial argument for the reason that the court had excluded evidence offered by them with reference to the position and condition of the deceased's body after the collision, and further because said argument was entirely outside of the record and not supported by the record, which objection the court overruled.
Appellants, in their objection to said argument, did not charge that the same constituted an assertion of fact purporting to be based on personal knowledge of such attorney, and we do not think that such construction would have been placed upon same by an ordinary juror. Appellants' assertion that such argument was unfair and prejudicial was, by the terms of their objection, predicated on their contention that the court had excluded the evidence offered by them concerning the position of the body, and on the further contention that the same was without the record. The court's qualification of appellants' bill shows that the court admitted all the testimony offered by them on the position and condition of the body, and that they did not offer to prove whether the feet were severed from the body and, if so, where they were found. The statement of counsel that, had deceased been lying prone on the track when the engine struck his body, his feet would have been severed and left on the west side of the rail, was merely his inference drawn from the facts in evidence. We cannot say that it was an unreasonable one, and we do not think he transcended the privileges of argument when he called attention to the fact that there was no testimony refuting such inference. The rule of law applicable here is laid down in 64 C.J. p. 265, § 284, as follows: "Counsel may state all *761
proper inferences from the evidence and may draw conclusions from the evidence on his own system of reasoning, although such inferences as stated by counsel are inconclusive, illogical, erroneous or even absurd, unless such conclusions are couched in language transcending the bounds of legitimate argument." The text quoted is supported by a great array of authorities cited in notes thereto. See, also, Texas N. O. Ry. Co. v. Conway,
Appellants present an assignment in which they assail the sufficiency of the evidence to support the findings of the jury that none of the several acts of negligence found against appellee was the proximate cause of his death. The acts of negligence so found were the excessive speed of appellee's train and the defective condition of the crossing over its track. Proximate cause is ordinarily a question of fact to be determined by the Jury from all the evidence before them, both direct and circumstantial. Texas N. O. R. Co. v. Ewing (Tex.Civ.App.)
Appellants present an assignment in which they contend that the court erred in rendering judgment for appellee on the verdict returned by the jury. The basis for this contention is that certain findings of the jury were conflicting and in legal effect destroyed each other. The substance of the findings of the jury in response to the issues prepared and submitted by the court has been hereinbefore recited. The court, however, appended to his charge a number of special issues requested by appellee, inquiring whether certain specific acts of the deceased constituted negligence and whether such negligence, if any, proximately caused or contributed to his death. While these several special requested issues were couched in language different from that used by the court in the issues on contributory negligence prepared and submitted by him, several of them were in legal effect the same. While the jury, in response to the issues prepared and submitted by the court, found that the deceased was guilty of acts of negligence which proximately caused or contributed to his death, the jury further found, in response to such special requested issues, that substantially the same negligent acts on the part of the deceased did not proximately cause or contribute to his death. The judgment rendered by the court in favor of appellee is not predicated on any finding of contributory negligence on the part of the deceased. It is predicated on affirmative findings that no negligent act of appellee was the proximate cause of his death. Contributory negligence is a defensive issue. It was therefore wholly immaterial whether appellee had succeeded in securing an effective finding or findings establishing such defense. The rule applicable to the situation under consideration is expressed in Millers' Indemnity Underwriters v. Schrieber (Tex.Civ.App.)
Appellants contend that the court erred in overruling their motion for new trial on the ground of newly discovered evidence. They presented the affidavit of one H. W. Marlin, who stated therein, in substance, that while walking north on Main street about 50 or 60 feet from the intersection of the same with Burnett street, he heard sharp blasts, which he termed danger signals, from appellee's engine; that he ran to such intersection and there had a full view of the crossing; that he was then about 150 feet west of the same; that the engine had already passed over the crossing and was then out of his sight; that box cars were still moving over the crossing; that the air had not then been applied but was applied shortly thereafter; that he saw the mangled form of the deceased scattered down the track south of the crossing; that he discovered an impression on the west rail of the track which he attributed to a shoe on the foot of the deceased; that the crossing at that point was full of holes and in a very bad condition. He further stated in said affidavit that he was formerly employed as a brakeman in railway service; that he quit such service in 1914 and had been engaged in farming ever since; that he was familiar with the speed of moving trains and with the time necessary to stop a train when moving at a particular speed; that appellee's train prior to the application of the air was moving at the rate of 45 miles an hour; that it could have been stopped by an emergency application of air in 150 or 200 feet; that had said train been moving at the rate of 20 miles an hour, it could have been so stopped in 80 feet. The testimony introduced disclosed that at the trial of the case five separate witnesses testified for appellants that the crossing on appellee's track was pitted with holes and out of repair; that five separate witnesses testified for appellants that appellee's train, at the time its engine struck the deceased, was moving at the rate of from 40 to 45 miles per hour; that three separate witnesses testified that the air was not applied until after the engine had passed the crossing where the deceased was struck; and that one witness testified that he saw an impression on the west rail of the track which looked like a shoe had been dragged along it. The aforesaid testimony was explicit and as comprehensive on said issues as the affidavit of the newly discovered witness indicated that his testimony would or could have been. The only fact embraced in the affidavit that was not presented affirmatively by the appellants through their own witnesees at the trial was his estimate of the distance at which appellee's train could, by an emergency application of air, have been stopped. There is testimony tending to show that the length of a train and the weight of the load it carries are factors to be considered in estimating the distance in which it can be stopped. The newly discovered witness did not claim to have been informed on these points. He frankly stated that he had not been engaged in railroading for twelve years. We may concede that due diligence was exercised by appellants to discover witnesses who had personal knowledge of the accident and that the newly discovered witness was not found. However, there is no attempt to show any diligence to discover a witness or witnesses qualified to testify with reference to the distance at which a train such as the one that struck deceased could have been stopped in an emergency. Apparently such testimony might have been secured from any competent railway employee engaged in the active operation of freight trains.
The rule with reference to granting new trials on the ground of newly discovered evidence is that due diligence must have been used to discover such evidence prior to the trial without effect; that such evidence is not merely cumulative; that it is material and of such probative force as to render it probable that a different result would be reached if another trial were had. 20 R.C.L. p. 290; Hatchett v. Conner,
The judgment is affirmed.
