*1 appeal. findings urged (1) tiff de- findings, and that the that also overwhelming weight negligence, fendant railroad’s a matter so the as law, proximate was a preponderance of the evidence cause of the jury, argues sup- unjust. (2) that there was manifestly He further no evidence port matter a negative respect as a de- finding the causation was established points. negligence, fendant’s of law. overrule all and no evidence We support finding the affirmative the act riding The head brakeman was of a third the was the sole cause of oc- accident the train when the engine of injury, (3) alternatively, find- the two the train curred, it. As described ings were against great weight the miles north passed grade a few crossing preponderance evidence, (4) acci- Austin, Texas, the night of on the findings. was a conflict between two up and dent, drive he saw an automobile The last point mentioned was not briefed. headlights car’s stop crossing. at The the pre- points These were all the saved and passed, a engine were turned off. As sented for our consideration. engineer. people at group of waved inwas witness, Another a conductor despite opinion, We reaffirm our several plaintiff, said with the the caboose points new asserted the first time on mo- 'fell rocks passed crossing a shower of rehearing. tion for stoning This upon them in the caboose. seconds, thirty forty for about
continued person at the he estimated that each rocks
crossing must have thrown about way the
apiece. judged He this from caboose.
bombardment sounded out, and lights knocked
The caboose
were
plain-
he found that
when he lit his lantern
GARRETT, Appellant,
Applying
head.
been hit on the
tiff had
two at-
correct rules to each of
al., Appellees.
George MATHEWS
et
evidence,
uphold the
upon the
tacks
7011.
No.
verdict.
effect,
points,
argue
other
Plaintiff’s
of Civil
proximate cause
jury
findings
Amarillo.
should have been
proximate
and sole
cause
16, 1961.
a matter of
in the affirmative as
answered
contention,
merit to the
6,
There is no
law.
Denied
Feb.
questions for
presented fact
issues
both
459,
T. C. 160; v. Atlantic
80, 128 S.W. Johnston 459; Lines, 183 S.C. S.E. Coast Co., 101 Kan. R. I. & Fraser v. C. L.R.A.1917F, 165 P. judgment Rehearing. opinion was written original
Our points plain- raised of four basis
290 and a into
Co. contract was entered between by them which the insurance carrier was subrogated rights appellant all the had to against provided appellee and which company might bring against insurance suit defendants in the name of Clarence Garrett recovery appellant for damages of to Gar- rett’s automobile.
Appellant urges of first this case as one impression nearly a in “white case horse” to that of Cormier Highway al., Trucking Companyet Tex.Civ. App., history) (No writ that we do not consider it a case of first Amarillo, Calhoun, Folley, Snodgrass & impression. case Chief Justice ap- Amarillo, counsel, Kolius, V. of for G. Murray of the San Antonio Court of Civil pellant. Appeals quoted appel approval lant’s statement in that case White, Am- Culton, Morgan, Britain & presented as follows: Cazzell, Amarillo, arillo, of Richard L.
counsel, appellees. for “May a receives juries person damages his to his to CHAPMAN, Justice. property single bring in a occurrence Dis- in 47th This suit was instituted damages actions County by Potter Clarence trict the same De- Defendant or against George G. Garrett Mathews fendants, injuries one for the his to dam- seeking recovery Checker Cab Co. injuries one for his to ages resulting from plaintiff’s automobile recovery property a bar- without one a and the collision between his automobile ring a in the other?” by George cab Mathews driven By appellees by the Checker Cab state without owned Co. appellant argument either in oral previous a had been suit There brief that had determined with collision, parties, the same based certainty through counsel in the Cormier Garrett, plaintiff, re- which subrogation case “that was also involved agreed judgment amount covered an party therein in interest personal $1,090 injuries sustained by was not Matthew Cormier as reflected defendants him in collision. The style, was, fact, an insurance pleaded the court judgment the same company, exactly as in case this now personal injuries a bar the sub- the court!” sequent for dam- cause of action asserted ages his and asked for sum- automobile pointed As out clearly Justice trial judgment based thereon. The mary case clearly in the Cormier there is a ma- plea granted bar and court sustained jority minority and a rule in the United summary plaintiff take judgment question. There States are two nothing as defendants. early bearing Texas have a cases which They the matter in this state. are Watson
Subsequent
filing
of his suit for
Ry. Co., Tex.Civ.App.
injuries
agreed
v. Texas & P.
personal
and before the
entered,
appellant
and Texas
here raised. *3 Administratrix, SNORF, Appellee. Grace E. unnecessary feel distinguishable we it No. 10810. many specifically point out the Court of Civil of Texas. being prevent features Austin. proper authorities us. Rehearing Denied Feb. Therefore, compelled follow feel we well Cormier case so authority of the hold reasoned Chief Justice good there is no reason
with that court that
why put through the parties should suits
expense two law and the trouble of grounds
when the exactly be based on
items of must conscious
the same facts. We too are rule, we exceptions to this do
there are but exceptions present
not believe those judgment of the trial case. The appellant’s
If motion we understand
rehearing position in our takes accepted
opinion we as evidence a statement appellees’ brief the effect that
party in interest Cormier case company and Cormier
an' insurance not style. is difficult
reflected reasoning if our us to such follow interpreted
statement we hasten drawing analogy it.
correct merely ob- made the
that case ours we statement was made
servation such
appellees’ brief without either argument. or in That is a oral it, though we stand
correct statement and considering not such statement as
we are
constituting case is evidence. Cormier reasoned; consider it analo-
well more
gous to ours on the facts than is either prefer case or Nelson case and
Watson majority
so-called view on the here
involved. We do not consider the case of Cayton,
Davis v. our
court, urged by appellant, authority any question being here considered.
The motion rehearing is overruled.