1 S.W.2d 868 | Tex. Comm'n App. | 1928
The plaintiff in error, for herself and for the benefit of her minor child, brought this suit for damages against the defendant in error, alleging the negligent infliction of fatal injuries upon her husband, and recovered a judgment for $3,000 in the district court. Upon appeal by the defendant in error to the Court of Civil Appeals at Dallas, the judgment of the district court was reversed and rendered in favor of the defendant in error. 296 S. W. 935.
The facts developed at the trial, as stated in the opinion of the Court of Civil Appeals, are as follows:
“The deceased, J. H. McCrearry, the husband of Mrs. McCrearry and the father of the minor, on the date of his death, was engaged in picking peaches in an orchard near Nash, a flag station on appellant’s railway in Henderson county, and had been so engaged for two or three days previous to the accident in which he lost his life. There is at Nash a small shed used as a ‘depot, but no agent. There is also a shed about 96 feet long, built and constructed along by, and in close proximity to, the side track of appel
“The speed of the train from the time it passed the depot until it struck the deceased is variously estimated by the witnesses, the minimum speed testified to being 9 miles per hour and the maximum 40 miles per hour. These witnesses, however, may be divided into two groups, one placing the speed from 9 to 15 miles per hour and the other group placing it.from 30 to 40 miles per hour. The schedule time of this train at Nash was 1 p. m., and it was on time on this occasion. The evidence as to the ringing of the bell on the engine as it approached and passed the depot is conflicting. The distance the train ran after it struck deceased is also conflicting, ranging in distance from the length of the train, which consisted of the engine, tender, express, and baggage car, and from three to four or five coaches, this not being certain, to about one-third of its length. We adopt the finding of the jury in reference to these issues, and find that the train was making a speed of 20 miles an hour at said time and that the bell was not rung.” *
In support of its conclusion that the plaintiff in error was not entitled to recover, and that it was its duty to reverse the judgment of the district court, and render one in favor of the defendant in error, the Court of Civil Appeals asserted in effect that, in an action for death of one who voluntarily placed himself between cars on side track and main track of the railroad at a time when he must have known a train would shortly pass, the deceased, in dashing in front of the moving train, could not be relieved from the consequences of his contributory negligence by the existence of a condition of peril, even though the perilous position was brought about partly by defendant’s negligence. Discussing this phase of the case, it is said in the opinion:
“Before deceased could be relieved of such an apparently heedless and reckless act of dashing in front of a rapidly moving train, not only must he have been frightened and terrorized because of the perilous position from which he felt he must escape, but he must have been placed in such perilous position solely through the negligent act of appellant. Where the danger is one incident to the place, its use or surroundings, one cannot voluntarily put himself in such a place and then plead the defense of sudden peril, for the danger resulting from the known use of such a place is one he must anticipate and guard against by proper care and precaution. Beaty v. Railway Co. (Tex. Civ. App.) 175 S. W. 450; 3 Elliott on Railroads (3d Ed.) § 1669. Deceased voluntarily placed himself between the refrigerator ears and the main track of appellant’s railroad, at a time when he must know that one of appellant’s trains will shortly pass and will only stop at the station by being flagged. The use of the track by pedestrians that was shown by the evidence was sufficient, under the finding of the
The first assignment of error and the proposition under it assail the correctness of this part of the opinion, which opinion is, in effect that the deceased, by the evidence, is conclusively shown to have been guilty of contributory negligence proximately causing his death as a matter of law. In order that we might determine whether the Court of Civil Appeals was right in its conclusion in this respect, it has become necessary for us to examine the statement of facts to determine whether the statements of fact in that part of the opinion quoted last find legally sufiicient support in the testimony. For instance, it is said by the Court of Civil Appeals:
“Deceased voluntarily placed himself between the refrigerator cars and the main track of appellant’s railroad, at a time when he must know that one of appellant’s trains will shortly pass and will only stop at the station by being flagged.”
And again:
“While he was in such position signals of the approaching train were noted by every one in the immediate vicinity, and the inference is conclusive that it was noted by deceased also.”
A reading of the statement of facts convinces us that the trial court may have been justified in finding as a fact, in support of the judgment rendered for plaintiff in- error, that the deceased did not know that one of appellant’s trains would shortly pass, and would only stop at the station by being flagged, since there were some circumstances proven in the case upon which the trial judge might have based such a finding. If, in fact, the deceased did know that one of appellant’s trains would shortly pass, and with this knowledge he voluntarily placed himself in the dangerous position he was, and made no effort to remove himself from such position at a time when he could have done so, and which a person of ordinary prudence would have done, then it necessarily follows that the opinion of the Court of Civil Appeals on this point would be correct. However, a reading of the statement of facts demonstrates that the evidence is by no means conclusive the deceased knew that one of appellant’s trains would shortly pass while he was in the dangerous position in which he was just before the injuries were inflicted. In truth, we have not been able to find any substantial testimony whatever in the record in support of this statement in the opinion. If the deceased did not know that one of appellant’s trains would shortly pass, and that in passing he would be placed in danger of receiving injury, no duty under these conditions rested upon him to take any precaution to guard against such a peril.
As to the second quotation from the opinion, the testimony shows that all the witnesses who testified in the case with reference to the immediate evidence surrounding the tragedy said that they heard the train whistle at a crossing some distance west of the depot, but there is no evidence in the rec-, ord that every one in the immediate vicinity testified in the case. So the statement in the opinion that every one in the immediate vicinity noted the signals of the approaching train, while finding support in the condition above related, is not justified, because of the absence of testimony that every one in the immediate vicinity were witnesses in the ease.
Proceeding to discuss this question further, the Court of Civil Appeals, after assuming as facts the matters hereinbefore discussed, proceeds correctly to state that:
“The rule which does not require one to act with the same care, as if he had full opportunity to exercise his reasoning faculties, when required to act suddenly, in the face of imminent danger, has no application- in a case where the person’s own negligence contributed to the peril from which he seeks to extricate himself.”
It has been seen that the facts upon which the Court of Civil Appeals based its action in the rendition of the judgment in favor of the defendant in error have no such support in the testimony as justified such action, and we are therefore of the opinion that this assignment should be sustained to the extent that it calls in question the correctness of the action of the Court of Civil Appeals in rendering the judgment in favor'of the defendant in error.
The authorities discussed by the parties in their brief depend for their application upon facts which have been proven in the case, and, since we have reached the conclusion, we have based upon the absence of facts, it will not be necessary to discuss these authorities having reference to this particular matter.
Speaking broadly, the theory of the plain
The jury found in response to. special issues presented by the court the following facts: (1) The operators in charge of the train failed to ring the bell continuously from a distance of not less than 80 rods from the crossing at the peach shed until they reached the crossing; (2) such failure to so ring the bell constituted negligence; (3) such negligence was the proximate cause of the death of the deceased; (4) the train was going at the rate of 20 miles an hour when it struck the deceased; (5) such speed was negligence on the part of the operators of the train at the time it struck the deceased; (6) such negligence was the proximate cause of the death of the deceased; (7) the space between the tracks where the deceased was struck was commonly used by pedestrians with a knowledge of the defendant in error; (8) the deceased, in walking between the tracks at the time and place, was not guilty of negligence; (9) under the eiroumstanees of the situation an ordinarily prudent person, situated as the deceased was, and with knowledge of the approaching train, would not have attempted to cross m front of it; (10) the operators of the train before the collision did not discover the deceased in his perilous position in time to avoid the collision. The jury, in response to questions propounded by the court at the request of the plaintiff in error, further found that the deceased, when he became aware of the approach of the train, became so frightened and terrorized as to render him incapable of rational prudent action with respect to his own safety, and that such fright and terror were proximately caused by the negligence of the defendant in error, and that such fright and terror were reasonably justified^under the circumstances. That is to say, a person of ordinary foresight and prudence, similarly situated, would have become so frightened and terrorized.
In view of the facts found by the jury which have been adopted by the Court of Civil Appeals, it is apparent that the judgment of the Court of Civil Appeals is correct in so far as it reverses the judgment of the district court, since it appears that there is an irreconcilable conflict in the verdict. The jury finds', in answer to one of the issues submitted, that “under the eiroumstanees of the'situation sueh as the deceased was and with knowledge of the approaching train, an ordinarily prudent person tcould not have attempted to cross in front of it.” Under this finding of fact, which is binding upon us, as well as upon the Court of Civil Appeals and the district court, the deceased was clearly guilty of contributory negligence at the time he received injuries for the recovery of damages upon which the suit is based. Notwithstanding this finding of fact, the jury rendered a verdict that the deceased, when he became aware of the approach of the train, became so frightened as to render him incapable of rational action with respect to his own safety, and that such fright was proximately caused by the negligence of the defendant in error, and was reasonably justified under the circumstances. Under these findings of fact, other conditions justifying recovery being present, the deceased was not guilty of contributory negligence as a matter of law, and did not entitle the defendant in error to judgment such as was rendered by the Court of Civil Appeals, but did authorize the judgment rendered by the trial court. T., & P. Ry. Co. v. Watkins, 88 Tex. 20, 29 S. W. 232; G., C. & S. F. Ry. Co. v. Matthews, 99 Tex. 160, 88 S. W. 192; International Great Northern Ry. Co. v. Oehler (Tex. Civ. App.) 262 S. W. 785; Beaumont, etc., Ry. Co. v. Sterling (Tex. Civ. App.) 260 S. W. 320; Wells Fargo Co. v. Benjamin, 107 Tex. 331, 179 S. W. 513; Veazey v. Galveston, etc., Ry. Co. (Tex. Civ. App.) 290 S. W. 283; Graham v. Hines (Tex. Civ. App.) 240 S. W. 1015. These findings being irreconcilable, the opinion of the Court of Civil Appeals reversing the judgment of the district court was correct, though as. heretofore said' we do not approve the reasons given in the opinion of the Court of Civil Appeals for its action in so doing.
It is not necessary to discuss the other assignments of error presented by the plaintiff in error, since they are of the same nature as the assignment which has been discussed and sustained.
In view of another trial of the case in the district court, it is proper, and perhaps necessary, that at least some of the assignments presented to the Court of Civil Appeals by the defendant in error should be noticed by us. The defendant in error presented to the Court of Civil Appeals the question we have already discussed as to the conflict in the
Objection was made to' the submission to the .jury of questions 8 and 9, requiring the jury to find that deceased was “waiting” between the tracks, on the ground that the same was misleading and improper. In view of the testimony, we sustain this assignment, since all of the testimony, both for the plaintiff in error and the defendant in error, is to the effect that, immediately preceding the infliction of the injuries upon the deceased, he was “running” between the tracks. The plaintiff in error’s theory was that the conduct of the deceased in so running between the tracks was the result of mental terror, occasioned by imminent danger resulting from the negligent acts of the defendant in error. As we have already indicated, we think there is testimony justifying the submission of this question to the jury in a proper form, but we think the use of the word “walking” was perhaps misleading.
The defendant in error objected to the action of the court in permitting the witness Erbin Walker to testify, in effect, that for a distance of 1,409 feet west of the peach shed there was no whistling post along the right of way to advise trainmen to whistle, and that only a small amount of clay ballast was along there, but that the main track adjacent to the shipping shed rested on only clay' and sand, on the ground that there was no allegation of negligence by plaintiff in error in the respect stated, nor that the same in any manner proximately contributed to the death of the deceased. An examination of the pleadings of the plaintiff in error forces the conclusion that these objections to this testimony ought to have been sustained. The defendant in error also objected to some portion of the argument presented to the jury by the attorney for the plaintiff in error, to the effect that the railroad track had no ballast, in consequence of which the engine was lunging and plunging, reeling and rocking, creating a cloud of dust as it approached the deceased. We sustain this assignment, since there1 was no pleading upon which to' base the testimony of the witness Walker, and this argument to the jury was only authorized upon the idea that this testimony was material and admissible.
We also sustain the assignment of the defendant in error, based upon other remarks of the attorney representing the plaintiff in error, to the effect that the minor plaintiff, .shown to be about two years of age, would never hear his father’s voice, or know that he had a father, etc. These remarks are not germane to any issue in the case, and were not proper, and might constitute reversible error under some circumstances.
We have considered all the other assignments found in the brief of the defendant in error, and overrule them; but, for the error-committed by the Court of Civil Appeals in rendering judgment in favor of the defendant in error, we recommend that said judgment be reversed, and that the cause be remanded to the district court for further proceedings not inconsistent with this opinion.
Judgments of the district court and Court of Civil Appeals reversed, and cause remanded to the district court.
We approve the holding of the Commission of Appeals on the questions discussed in its opinion.