*1 Guy Thompson, Al A. L. Et Julia Trustee, Louis, Brownsville & St. Railway Company Mexico 1957. January No. A-5611. Decided
Rehearing
1957.
February
overruled
817).
(297 S.W. 2d Series
Junction,
Blackburn,
Morris,
M. E.
Underwood & Old-
Houston,
Morriss, Boatwright
Lewis and
ham,
Morriss,
&
Morriss,
Antonio,
Jr.,
plaintiffs.
A.
all of San
Will
*2
rendering judgment for
Appeals
erred
of Civil
The Court
remanding
trial
to the
court.
that cause
defendant and
not
112;
380,
Co.,
2d
Jackson
Texas
v. Texas
138
159 S.W.
Turner
Smith,
608;
128
2d
Lanford v.
147 Texas
S.W.
Hall
373,
Wren, Ray Hoover, Howard Carrall L. S. and and Houston, respondent. Graham, all of for REHEARING
ON opinion delivered the of Court. Mr. Justice Garwood original 3rd, By opinion we our delivered October Appeals, judgment of which in affirmed of the Court Civil for trial court and turn had reversed the rendered ground respondent-defendant that railroad on the ver- establishing peril support a case discovered was without dict of rehearing this On we have in the evidence. concluded original accordingly and opinion is error. Our withdrawn following therefor. substituted petitioners below) (plaintiffs the survivors and Creech, compensation insurer Benton of Alvin
the workmen’s employee building contractor, who, a while of road single by respondent killed a of the a narrow struck and on bridge respondent heavily railroad track of the a flooded over Bishop Kingsville, south of and north Texas. The de- creek of Lee, bridge attempt- employee, a ceased and fellow were on the ing away to steer road driftwood downstream employer. construction their sketch of the scene A published opinion the accident will in the of be found Appeals. 2d refer Civil S.W. 256. also Court We opinion for more statement detailed of the evidence. liability on The issues discovered were the issues submitted, corresponding peti- answers in favor judgment, "the trial tioners were basis of court’s the hold- ing Appeals being petitioners- Court of Civil * * * proving “failed to plaintiffs discovery by appellant’s first, meet burden
(respondent employees railroad’s) such time that use of the means at hand "the could have em- second, such deceased, colliding avoided avoid the collision.” at hand to the means to use ployees failed alternative expressly in the held named court also The last weight preponderance great against the verdict accordingly remanded evidence, case should that the holding of “no evi- principal trial in the event a new for erroneous. found dence” should be reasoning largely permissible problem actual one of Our way from circumstances jury by of inference part disre part on and reliance in evidence keeping familiar rule contrary parts In with the garding of it. evidence,” accept testing evidence “no we for and verdict permissible most therefrom favorable inferences indicated. and so recite them unless otherwise verdict *3 day about a in late The accident occurred 4 P.M. on clear train, April. passenger a train cars and a The “crack” of five by engineer fireman, an and a was diesel locomotive manned and, general rural, open level, headed The area south. was and straight bridge, for at least mile north of the the track was level, and with no to the locomotive obstruction vision between being object bridge, and on the the latter surface of the straight, long, narrow, about 200 feet flat and side with no superstructure, rails or other and no feature that would enable person bridge yet being a by to remain on the and struck avoid passing train. employee bridge
The deceased and his fellow on the first approach standing they became aware of the train’s somewhat less than 100 feet south of its north end and forth- end, ran toward the south with Creech about two strides approaching Lee ap- behind proximately and the train from behind At both. end, jumped safety the south Lee of the bank, just landed, body, by stream’s as he but Creech’s struck train, fell near him. approached bridge traveling high The train as it was at speed, stop and did not come to a until the rear end was about bridge. 1500 feet south the south end of the There was some testimony bystander from witnesses that ap- train did not pear prior to the actual slow down collision.
The evidence as either direct the time of realization by operatives of the two men the railroad or the steps by accident, taken the latter to avoid the deposi- was fireman, Lawrence, introduced tion engineer, while avail- party rule. The adverse able, that, by party. fireman testified either The was not used running bridge, about approached train it was effect, second, and, he per hour, per or 88 miles feet engineer perilous situation first realized feet employee his the locomotive about and fellow when was bridge, feet from where Creech north of the about 600 struck, re- up had made to to which no effort been preventive speed. no also time, that he himself took duce He testified engineer “was because he saw action getting emergency place.” blowing his horn and his brake in that, prior time, he He also testified some five seconds “something” bridge did not realize that it saw but although visibility reaching stated, until the further men “safely” “could” a man that he see three-fourths of such engineer why he mile ahead of him did not know admitted than did. also did not see the men sooner He familiarity with the character and condition of the the flooded condition the stream. that, speed stated,
The fireman estimated stopped ordinary could within 2500 use of its brakes emergency use of and within brake. stopping total distance the locomotive traveled without (at
after the admitted of “realization” some 400 feet north nearly mile, bridge) was about 2300 half in- length cluding just mentioned, the 400 feet the 200 foot *4 bridge, bridge the feet the south of 1500 end the the to length itself, stopped rear of the train the the and of train which at must have been least 200 feet. The total distance traveled objects bridge the first after fireman saw on the some 440 further, taking the feet the additional time as five seconds and speed per as 88 The total the feet second. distance traveled plus striking after the deceased was 1500 feet the locomotive length (200 feet), assumed the train or a of total of 1700 feet. indicated, position As distance between the before of point at of “realization” locomotive the fireman’s admitted position actual at the of collision was some 600 feet. figure The must be raised to if latter about 1000 we take point of “realization” to be at which the ac- fireman knowledged objects bridge seeing prior some five seconds n realizing objects to were men. significance testimony purported of actual or
Other will proceed. to referred as we
565 finding of realization of first discuss We by proper use him in time to have saved deceased occurred whether question of at hand. further essential the means The of course, actually diligently used of means those were given one, although theoretical in a case their quite different decelerating train bear to capabilities and effect as question time. question as as on the of available on that well Co., 538, Ry. 252 Texas v. Panhandle & Fe 151 Ford Santa 2d 561. S.W. time, enquiry obviously one of
While testimony of as in direct terms time is the fireman’s statement they objects realizing he when saw on before distance, men, yet properly we can reason also in terms of which, moving object, equivalent applied as to a of time. is an timely op part fact
The “realization” on the eratives, diligently like that of whether thereafter used hand, may at by circumstances, the means be established testimony. latter, or without aid their own And may jury part rejecting believe it it another part. Co., Ford Ry. supra; v. Panhandle & Fe Santa Texas & Goodwin, R. App. 182, N. O. Co. v. Texas Civ. 40 2d S.W. wr. er, refused; Arrant, App., 767, Hines v. Texas Civ. 225 S.W. refused; writ error Griffin, 654, Brown v. Texas 71 9 S.W. 546; see Grace, also Texas R. & N. O. 144 Co. 188 Texas 378; Co., 2d Turner S.W. v. Texas 138 Texas 159 S.W. 2d 112. jury The could believe the fireman’s the effect going per
that the train prior feet second at and .well to a from the of collision and that before reaching point, the former (or for some five seconds per second) prior feet ing thereto, actually he was look- bridge (on at the “something”). which he said he saw jury could any part also have all believed of his reflecting prevailing visibility, favorable conditions of in- cluding distinguish ability a man at three-fourths of a jury At the mile. same could time have his disbelieved state- did point. ments that “realization” not occur until the 600 foot Accordingly properly could have reasoned that *5 actually “realization” occurred at from point of Texas & N. O. R. Goodwin, collision. Co. v. Hines v. Griffin, supra, support Arrant and Brown v. such a view. all In cases, of these each of which involved the issue of discovered peril, the fact of “realization” has been held to adequately — — against cir- a contention of “no evidence”
shown as an visibility. cited, In the first case there was cumstances “realization,” in while of direct as to absence opera- that the train others direct seeing tives, seeing of the accident or denied the victim who All of them were reviewed him in time to have saved him. Co., supra, adverse Turner without the later case of v. Texas although contrary re- criticism, the Turner decision reached Grace, R. decision in Texas & N. O. Co. v. sult. Our still later held, case, raise that did not like the Turner circumstances “realization,” timely pointed forbearance a fact issue of but rely, citing the to discuss the decisions on which we now two decision, that the facts of these Turner confirms our view essentially those the earlier later cases were different from ones, they are, opinion, instant as in our from the facts of the case. that, words, jury properly
In other could have reasoned being “safely” of a mile the deceased visible for three-fourths person operatives, lat- in the situation of the train — — particularly actually looking ter track, the fireman down the duty required said
as their them and as fireman to do were, they must have seen and realized the deceased at a at least 1040 of collision rather than at 600 feet as the fireman testified. In this connec- language holding Griffin, supra, tion the Brown v. reasoning obviously as apt.1 seems most is not the same Such converting the statement of witness into a different statement process disbelieving the mere the actual statement. merely seeing
As to the difference between the men realizing peril, jury properly their we think have that, seeing peculiar circumstances, believed the would equivalent of realization. In this connection there great distinction the situation of seem to be no between track, in Texas stalled on the & N. O. R. Co. automobile caught Goodwin, supra, and men in the of a narrow middle operatives a stream which the over knew flooded. complained charging effect, plain 1"It the court erred in is put although position danger, danger by person in a
tiff could he himself if recover engine charge giving saw him in time to warn him of in signal do it. It there was no and failed to claimed evidence to warrant theory fireman, charge. Upon the this * *** bound believe the proof is, upon engine may operating But was. this be true. he nothing it, in front of it toobstruc and that there his view of track. he presumed jury might plaintiff.” from this that have did see the he Texas 546, 547. 9 S.W.
567 jury that real- reason could also have concluded within suffi- point at 1040 feet afforded ization from the of collision properly train cient time within which to have down the slowed escape. necessary to the extent to enable Creech Clearly all the additional time that a Creech needed was — running, cover, mre instant necessary the instant for him to steps the one separating companion, or two him and his who actually escaped. quite The situation track, thus unlike that a car stalled a stop on a full where of the train would be necessary only in order to avoid collision. Its avoidance was a matter of deceleration sufficient to afford the additional mo- Evidently jury ment. that, did not have to since reason conceivably might making step have fallen in the last two, or avoiding the time for available the accident could required bringing be that stop. the train a full Ford Ry. supra. Panhandle Co., & Santa Fe The fireman’s estimates as to the distances within which train fully stopped speed have been from a per by second emergency use of the and service re- brakes spectively, were purposes, “evidence” however, for our unim- pressive weight. Assuming, then, stopped could have been within 1250 feet the use one by using brake and 2500 feet other, was in our general entitled to knowledge conclude from its own the train could have been necessary decelerated to the ex- — tent at reasonably last prompt emergency use of the brake — from and after perilous realization of the situation about ahead of the of collision. proof process
Some rate of deceleration would, indeed, like cases appropriate, have been and there was none; proof, best, but such would have been but theoretical necessarily and not much more applied authoritative as to this particular particular train at this place time and or- than the dinary general knowledge man’s of such matters. think We any such absence evidence petitioners-plain- favorable to the tiff does not foreclose their case as a matter of law. Since gravity always operating against forces of and friction are motion, speed, train’s its whatever even alone would seem deceleration, to cause some instantaneous slight, however once countervailing power of the locomotive has been shut off. Certainly train, we know with brakes applied, would original preserve speed way not its all the to the last foot of potential stopping distance and then decelerate stop space see an hour to full of one foot. miles nothing extraordinary We proof, jury, in a further without aid of reasoning fully stopped that if train can within 1250 original speed substantially it can slowed within below distance, first first four-fifths of that within the *7 application emergency 1000 feet after of the brake. jury could found that “realization” thus occurred
The have emergency by prompt time to saved use of the in have Creech brake, although it should also have believed that the was brake actually applied point at the 600 foot the fireman said where If, application brake, it such an actual was. Creech yet only escape, merely lacked instant it seems common application to conclude earlier it sense that five second of enough fact, would have to save him. In the been — actually just way that well have reasoned that realization occurred five seconds more did, than the fireman it sooner said applied later, that the was fireman said
but brake was, escaped, it still but too late. The fact that almost being actually point, applied with the brake would at the later justify the that conclusion there was time to have saved him by applying point it at the earlier realized. where his — principal question
As to the second jury had whether the right ap to find that seasonably fact brake not in —plied great difficulty concluding we have no that it did. jury believed, might have, If the ap as it brake plied, “realization,” delay but some five seconds after ground in itself uphold would be sufficient the verdict. If it believe, might did not so it well have reasoned that the brake applied was not considerably until later even than the fireman was, is, said it much later than after five second “realiza bystander tion.” The witness was to the effect the train did prior collision, not slow down all to the actual and, weight, purposes whatever it was evidence for the of was, “no moreover, evidence” case. There the fact train nearly stop did not come ato until the had locomotive traveled
half a mile from the where the fireman said the applied brake was beyond and at least of Considering collision. possible stop also the as to the ping against distance of 1250 we think an inference actual timely application justified of the brake was Ford Ry. Co., supra. Panhandle & Santa Fe What we have held and said course, above under- light stood in the issue, which is that of “no question evidence,” necessary relation to the and has no weight preponder- against great is whether verdict juris- no evidence, has latter ance of the as which this Court any diction event. so Appeals judgment is reversed
The Court Civil against petitioners-plain- judgment far as it renders final However, taken as judgment also be tiff. since the same must reversing ground that trial court weight against great preponderance of verdict evidence, district must remanded to the court cause for another trial.
It is so ordered. dissenting concurring orig- opinions our filed with opinion request inal are there- withdrawn at the authors of, original superseded. opinion since the itself is *8 sitting.
Associate Justice veil not Nor Opinion January 9, delivered 1957. dissenting.
Mr. joined by Justice Culver Justice Griffin agreed I opinion formerly with the delivered this Court nothing rehearing contained the motion for has caused me to my opinion withdraw disposition view. In Appeals made of this case the Court of Civil the correct one. 284 2d S.W. 256.
Opinion January 9, delivered 1957. dissenting.
Mr. Justice Walker Appeals I would affirm the Court Civil opinion. for the set in its reasons out 2d 256. S.W. January
Delivered 1957. Rehearing February Motion for Second overruled 1957.