257 S.W. 870 | Tex. Comm'n App. | 1924
This suit was brought by defendant in error against the Director General of Railroads, in respect of the operation of Morgan’s Louisiana & Texas Railroad & Steamship Company to recover damages for personal injury, having been filed in the district court of Harris county. A judgment for $5,000 was affirmed by the Court of Civil Appeals at Beaumont. 244 S. W. 222. James C. Davis, Agent, has been properly substituted, and will now be referred to as plaintiff in error.
At the time defendant in error was injured he was employed by the railroad company to repair a car in the yards at Lafayette, La. The car was being used in interstate commerce, and the case falls under the provisions of' the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665). There is no dispute in the evidence as to how the accident occurred and as to the surrounding circumstances at the time of its occurrence; in fact, the defendant in error alone testified as to these things.
Defendant in error, Castile, and one Webb were directed by an employé of the railroad company to repair, the car by putting in new shaft bolts. The car was loaded with ship-lap lumber, about 8 or 10 inches in width. It was stacked in the ends of the car, leaving an open space of about 6 feet in the middle of the car. In being transported the lumber at the top of the stacks had shifted towards the middle of the car, so that the space between the ends of the two stacks at the top was about 2 or 3 feet, while the space at the bottom was about 6 feet. In order to reach the bottom of the car it was necessary to move a part of the lumber from one end of the car to the other. This was done by taking out 4 tiers of the lumber from one end and shoving it to the other end of the car. In doing this Castile and Webb began at the top of the stack or tiers, taking off a board or plank alternately from each of the four tiers. Webb was at the end of the car, and Castile in the middle. Webb would pick up a board, passing it to Castile, who in turn would shove or push it back to the other end of the car. They selected their own method of doing the work and the positions that they occupied in the car. The work continued this way until the 4 tiers were brought down to within about one foot of the floor of the car, leaving the lumber stacked in tiers on each side of the car to the height of , 5 or 6 feet. In other words, there was a “trough” the width of 4 of the planks in the middle of the car, with tiers of lumber on each side of the trough. In handling the lumber Webb stood in this trough at the end of the car, while Castile stood near the middle of the car, but possibly within the upper part of the trough formed by the boards that had shifted to the center of the car. Just immediately before the accident Webb had picked up a plank, passing it to Castile, who took it and started to push it to the end of the car. While in the act of doing this, with his back towards Webb, the lumber stacked on the side of the trough toppled over or fell from the top of the tier, striking and breaking one of his legs. There was not a scintilla of evidence as to what Webb was doing at the time the lumber fell, or as to what caused it to fall. Castile testified that he did not know what caused it to fall. The negligence alleged by him as causing the accident was as follows:
“That the person assisting in this work negligently struck or came in contact with the lumber on one side of the trough or opening, which had been partially made by removing a part of the lumber, or negligently pulled a piece of lumber from one side of the lumber in said car so as to disarrange and unbalance the lumber on the side of the car and cause same to topple and fall upon the plaintiff or negligently stacked the lumber being removed from the trough so as to cause same to fall and inflict upon him the injuries hereinafter set out.”
To sustain the verdict of the jury and the judgment of the court in this case, the defendant in error admittedly relies upon the contention. that it must be inferred or presumed that Webb did something which caused the lumber to fall, and that what he did was negligent. In other words, that negligence must be inferred from the mere happening of the accident itself. Having made absolutely no proof of negligence on the part of the railroad company, but having proved the circumstances of the situation at the time, he insists that, because negligence might possibly be inferred from the fact that the accident happened, the verdict of the jury should stand. To agree to this it seems to us would be to ignore every substantial principle that has heretofore governed in negligence eases.
It has recently been well said:
“The rule is fundamental that the mere happening of an accident affords no legal grounds for a claim for damages, unless the claim can be predicated upon that class of accidents, gov*872 erned by the rule of res ipsa loquitur, which per se raises a presumption of negligence.” R. O. L. yol. 4, p. 1344.”
There are so many reasons why the rule of res ipsa loquitur has no application in this case it seems almost unnecessary to argue the matter. That rule may be briefly stated:
“Where a thing which causes an injury is shown to be under the management of the defendant, and the occurrence is such as in the ordinary course of things does not happen if those who have the management use proper care, it may afford reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.”
In the first plage it may be said that under the decisions of the federal courts it is very doubtful if this rule applies at all as between master and servant. If it does, it 'is only in exceptional cases. L. R. A. 1917E, p. 70. This is not an exceptional case in the light of the authorities.
The rule of res ipsa loquitur has no application, where the thing causing the accident was not under the exclusive management of the master, but was partially under that of the injured party. T. & P. Coal Co. v. Kowsikowsiki, 103 Tex. 173, 125 S. W. 3.
Again, where the evidence shows that the accident may have happened as the result of one of two or more causes, and it is not more reasonably probable that it was due to the negligence of the defendant than to any other cause, the rule of res ipsa loquitur does not apply. Patton v. Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361. Railway Co. v. Cason, 59 Tex. Civ. App. 323, 129 S. W. 394. T. & P. Coal Co. v. Kowsikowsiki, supra.
The Supreme Court of Wisconsin has recently stated this principle in this language:
“The jury could have done no more than guess as to whether the accident was the result of careless and negligent operation of the ear or of the blowout. Verdicts cannot rest upon guess or conjecture. It is the duty of the plaintiff to prove negligence affirmatively; and, while the inferences allowed by the rule or doctrine of res ipsa loquitur constitute such proof, it is only where. the circumstances leave no room for a different presumption that the maxim applies. When it is shown that the accident might have happened as the result of one of two causes, the reason for the rule fails, and cannot be invoked.” Klein v. Beeten, 169 Wis. 385, 172 N. W. 736, 5 A. L. R. 1237.
For cases very similar to the present ones upon the facts we refer to the following: Cato v. Ry. Co. (Tex. Civ. App.) 119 S. W. 132 (writ refused); T. & P. Ry. Co. v. Flowers, 47 Tex. Civ. App. 206, 104 S. W. 1070; H. & T. C. Ry. Co. v. Martin, 21 Tex. Civ. App. 207, 51 S. W. 641 (writ denied); T. & N. O. Ry. Co., v. Crowder, 76 Tex. 499, 13 S. W. 381. It occurs to us that these cases establish almost conclusively that defendant in error was not entitled to recover in this action.
For an illuminating discussion of the rule of res ipsa loquitur, we refer to the cases and annotations in L. R. A. 1917E, pp. 1 to 249, wherein the application of this rule by the federal courts and the courts of all states in the Union is fully discussed, and many cases cited.
There being no evidence upon which to predicate liability in favor of defendant in error, the trial court should have instructed a verdict.
We therefore recommend that the judgment of the Court of Civil Appeals and of the district court be reversed, and the cause remanded.
We approve the holding of the Commission of Appeals on the question discussed in its opinion.
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