*1 ATCHISON, FE TOPEKA & SANTA CO., Appellant, RAILWAY SCOTT, Appellee.
Allen J.
No. 7791. Appeals
Court of Civil
Beaumont.
Jan. 17, 1977.
Rehearing Denied Feb. O’Brien, Beaumont, appellant.
Chilton Bowen, Houston, appellee. J. Donald *2 there was the rails. While out underneath KEITH, Justice. unit, no commu- they received a radio in is with- rehearing, prior opinion On (both of Silsbee nication Somerville lieu substituted in and this drawn facilities) as to a communication which had thereof. washout. possible an ad- appeals from Defendant below a motel when in Plaintiff was Somerville after a trial. rendered judgment verse an hour and a called to work—about he was the Fed- suit under Plaintiff below leaving he half before Somerville—when Act Liability U.S.C.A. Employers’ eral [45 for warning over television heard a storm personal injuries sus- to recover for § 51] having heavy was a that area. Somerville scope of his in course and while tained crew downpour at The train time. a train when with defendant employment of de- warning in advance received no derailed. railment. terms, general in very alleged, Plaintiff Shepherd engineer. the train’s J. D. was in whole or his were caused in injuries accident, of the approached place As he the defendant negligence of by the so, right”; look he thought, he “it didn’t reasonably him with a failing provide warn- emergency stop. train in No put the specific allega- Three place to work. safe The given before then. roadbed ing was in the of were included tions ground or five feet above there is four margin.1 in the quotation short found a spans usually dry what is bridge level. A pleading that Defendant answered Previously, he had seen water creek. by an Act of its tracks was caused washout creek, up except it had never backed but unprecedented an of God in that there was a there. Af- good It was track night. this geographical in a small area which rainfall appeared to be ter the wreck the washout the level of caused the water to rise above bridge about fifteen feet wide. Although tracks. defendant offered of the volume night did not take care defense, hereaf- a proof water, clearly as mentioned cause washout. was on ter, requested instructions and issues was the track of Brenham D. Waits Jerry objected charge such defense and at Mile Post 46 supervisor. The track issues, the the failure to submit such responsibility. (scene accident) was his any submit issue which would refused to morning track on the inspected He this had to find that the de- have enabled nothing un- accident and noticed was or was established. fense heavy no reports usual. He had received re- weather trip, previously rain that but Jr., Sheldon, the conductor of Wade telephoned by the chief dis- ports were train, as the the derailment occurred said Temple. something If he finds patcher at Mile Post three miles from passed train location, “flag” can wrong at a he the loca- Plantersville, at m. it was p. about 9 While He was called that tion or use his radio. then, raining it had earlier. raining been had occurred. night after the accident expect He had no reason to a washout occurred. Price, the track where derailment a resident of Plantersville Morgan “big por- he a they After the accident saw that said had more than six years, for 55 day track was of the accident. foundation of the inches of rain on the tion rails, of time period This was beneath the It fell faster in a shorter away.” washed A. is, the he witnessed. swinging; previously the rails were than had Coumes, rancher, also detailed had been washed C. a ballast and roadbed addition, injuries to Plaintiff. supporting accident and and ties were “The bed track construction, faulty provisions of Boiler or mainte materials and Defendant violated the they Inspection to detail since allowed this train in that 23] nance Act U.S.C.A. § safe, question. vio engine riding Defendant also the occasion all in was not Plaintiff Statutes Article 6328 Vernon’s Civil lated or in his of which was a cause in whole and such violation was Annotated injuries.” cause, part, or in and was rain”, (1926), rose “blinding and said that water Civ.Stat.Ann. and rotten ties and old in fifteen four feet minutes. no evidence in the track. Plaintiff offered and his evi- condition of the ties McCurry, engineer H. assistant Louis adequacy dence with reference defendant, bridge says building based, bridge exclusively, almost fre- one-hundred-year uses defendant *3 of witnesses cross-examination the runoffs, of rainfall the Texas while quency by large the railroad. He a amount spent fre- Highway Department fifty-year uses a viola- attempting prove penalty of time to a bridge designed The quency. involved jury the the did tion under federal act but feet of discharge eleven thousand cubic to not find for him on this facet of the case. second. per water point spells seven Defendant’s number 1945, top In some water overflowed complaint present procedur- out the track so the track was raised. On base therefor: al derailment, ex- the rainfall day “The error of court in submit- capacity bridge causing the trial ceeded substantially ting jury Special This Issue No. over the washout. rain was in likely objection global one occur once one that issue was a more than to rainfall cal- a frequency permitted jury His issue which to make years. hundred and data. maps prior upon was based of based facts finding culation pled upon were not which no which and Goldman, meteorologist L. a Joseph upon had been introduced or evidence in Hous- the Institute Storm Research upon but which no evidence pled facts involved ton, study made a of the rainstorm had been introduced.” began p. This at 5 m. in this accident. rain min- p. thirty until 7:30 For Plaintiff, and lasted m. relying exclusively upon almost to utes, expected rainfall of 3.6 inches is a v. Muekel Members Mutual Insurance Co. study A every years. occur once hundred 77 (Tex.Civ.App. roy, 523 S.W.2d — Houston equaled radar showed this rain of Galveston 1975, e.), contends writ ref’d n. r. [1st Dist.] testified, we can rate. He “I think that court its discre the trial did not abuse ' truly extraordinary this is a safely say very in form” of submis using tion “broad rainfall rate.” After careful consideration sion. and subject, disagree on the we authorities quoted: Issue Number One is
Special number seven. point sustain defendant’s of find from a you preponderance “Do ques- relied, extent, in evidence that on the occasion Muckelroy large to a negligent?” tion the railroad was Company found in Mobil Chemical language with Bell, 245, (Tex.1974) 517 S.W.2d responded: “We do.” jury which the To at 81. to be found at 523 S.W.2d quotation issue, jury second found answer to the to the case is not language appropriate This “in negligence” a cause that “such were several review. While there of sustained part” injuries or in alleged, of negligence acts specific failed to find plaintiff. jury by as to “evidence plaintiff did introduce Act, so Inspection of the Boiler violation each”; thus, Justice McGee language of ex- entirely and judgment rests plaintiff’s point. is not in number in issue clusively upon one. review carefully the law We have studied Pope by Mr. Justice earlier, authored article have out pointed
As we
(1973)]
remain convinced
and
the violation
Sw.LJ.
pleaded
only
court,
case and under
in this
two other
Act but had
Inspection
the Boiler
review,
its dis-
which we
abused
the facts
inadequacy
allegations:
6328,
submitting the broad issue.2
Tex.Rev.
as a violation of Art.
cretion
bridge
Gladys
case,
hesitancy
Company
Company,
City
proper
no
506 S.W.2d
we have
In a
suggestions
following
(Tex.Civ.App.
Justices
288-289
set out
— Beaumont
e.).
writ ref’d n. r.
publications
Pope
respective
in the
and McGee
See,
g.,
Sulphur
noted earlier.
e.
Texas Gulf
jury]
definition
“Giving them
opinion
Indeed,
[the
language
found
what
telling them
‘Act
without
support
lends
of God’
Muckelroy
rehearing
a determination
would be of
Court felt
the effect
The Houston
our conclusion.
were caused
injuries
that Scott’s
clarify
its earlier
them
upon to
called
procedure.
was a useless
with the iliuck-
of God’
in accordance
the ‘Act
we now hold
*
*
*
*
*
*
“clarification”,
trial court
elroy
to limit its
have instructed
should
no
there was
the objection,
“As
stated
those
acts
consideration
deter-
register their
way for this
by evi-
supported
pleaded
which were
regard to ‘Act of God’.”
mination
error number
point of
dence. Defendant’s
the trial court
opinion that
Being of the
is
seven
sustained.
de-
submitting manner of
erred in the
now to
consideration
We turn
error
fense,
point of
defendant’s
we sustain
the manner
defendant’s contention
six.
number
*4
defense of Act of God was
submission of its
doubt as
grave
have
We
seriously argue
can
one
erroneous. No
sup
to
evidence
sufficiency of the
as
of God was
to Act
plaintiff’s evidence
tested
herein when
recovery
port plaintiff’s
of the
to warrant submission
not sufficient
out
v.
set
in Garza
usual rules as
Al
ordinary
issue under
circumstances.
(Tex.1965).
821, 823
Alviar, 395 S.W.2d
to
court refused
though requested,
trial
under the Federal
However,
arising
cases
jury could
whereby
submit an issue
Act are determined
Liability
Employers’
find,
find,
occurrence was
or fail to
Pa
Texas and
standard.
under a different
Instead,
an in
by
caused
an Act
God.
Roberts, 481
Railway Company
cific
given
spe
which
preceded
struction was
federal
(Tex.1972).
800
While
S.W.2d
quote
charge.
cial issues in the
We
par
rights
substantive
governs
law
margin.3
instruction
Defendant sub
cases,
cases filed in
ties in F.E.L.A.
a requested
accompanied by
mitted
issue
an
“in accordance with
state
are tried
courts
instruction
would have elicited a di
which
Missou
of Civil Procedure.”
our own Rules
question.
It also made
rect
Cross, 501
Company v.
ri
Railroad
Pacific
to
specific objections
the court’s failure to
(Tex.1973).
870
S.W.2d
the jury.
submit the issue to
remaining points
merit
We find no
shown,
error is
Plaintiff contends that no
Because of
forward.
error
Act
is
arguing that
of God defense
herein,
judgment of
errors
discussed
simply an “inferential
issue” and
rebuttal
is re-
the cause
trial
is reversed and
court
Yarborough
such issues were condemned
manded.
Berner,
(Tex.1971), and
The Constitution of the as state. To pra, longer State is no the law in this written, amended, originally pro- and not Buck, paraphrase Justice Norvell Reed v. V, vides in in Art. 13 as follows: § (Tex.1963), that ancient S.W.2d cases, soldiers, just “. . . In trials of civil cases . like do not fade old Courts, in the District nine members of Supreme remain decisions of the away, but concurring, may a ver- jury, render good is some reason Court and unless there dict . . . .” them, they should not be overruling disregarded. significance I attach real to the word “concurrence” as used in this constitutional the constitution of opinion, humble my its provision give meaning, it usual requires this state “concurrence” is, unite, agree. combine and in this record jury, which is not reflected before us. us, in the case before alleged in the majority opinion, stated among things other that defendant Justice, DIES, dissenting. Chief construction, negligent in the materials I dissent. I believe Tex.R. respect, With and ties under the maintenance bed court discre gives 277 now Civ.P. only This was asked question. track in in this the issues as done tion to submit negligent the defendant was whether Mutual Insur Certainly, case. Members question. the occasion in It is obvious that (Tex. Muckelroy, ance Co. v. S.W.2d there impossible it is to ascertain whether 1975, writ Civ.App. [1st Dist.] — Houston “concurrence” *5 Moreover, e.), expressly n. r. so holds. ref’d negligence. act of jury upon particular Pope review article Mr. Justice the law state, in Trini Supreme Court 577 at 581 Mr. Lowerre Sw.L.J. [27 11, 172 107 Tex. ty Ry. Geary, & B. V. Co. v. 277 of the Rule as (1973)]explains scope the (1915), 545 it clear that crystal S.W. made follows: it as thing “concurrence” meant the same judge a case in which the suppose “Let us I In this case it is have indicated above. issue, occasion in ‘On the submits court submitted two stated that negligent?’ question, the defendant grounds jury, conditioned question followed to allow charge permitted jury court’s answer, the occasionin upon the first ‘On ground either plaintiff upon to recover proxi question, was separately upon grounds or the combined ques of the occurrence in mate cause
together.
jury
The form of the
answer
boggles
submission
a broad
tion?’ Such
upon
the com
recovery
showed
who have
practitioners
the mind of Texas
grounds. The case was reversed and
bined
Dallas Hotel Co.
lived under Fox v.
with this statement:
remanded
461,
century.
for half a
Tex.
745 & R. (1945); v. Louisville Nashville Steele Indeed, 1974).
Co., (6th F.2d 315 Cir. Co., Ry. 352 U.S. v. Missouri Pac.
Rogers 443, 448, 1 507, 77 L.Ed.2d S.Ct. find:
(1957), we this statute test of
“Under proofs justify simply whether the
case is employer
with reason the conclusion part, even the
negligence played any death producing injury
slightest, sought. are It does damages
for which evidence, that, matter reason, may with also the re- probability, attribute
grounds causes, including other the em-
sult contributory negligence.”
ployee’s why this is another reason
I believe is not
form of submission used this case
improper. Supreme was said
As Railway Company
Texas and Pacific
Roberts, (Tex.1972): S.W.2d purpose
“The of the F.E.L.A. is to vest jury with on the complete discretion issue liability.
[*] [*] [*] [*] [*] [*] another once way, appellate
“Stated sup-
court determines that verdict is *6 by some evidence which rea-
ported about differ, minds appellate
sonable could
court’s function is exhausted.”
ALLRIGHT, INC., Appellant, SCHROEDER, Appellee.
Carl
No. 16846. of Civil Appeals (1st Dist.).
Houston
March 1977.
Rehearing April Denied