Missouri-Kansas-Texas Railroad v. Evans

enlarged their thereafter no that the There is Waddells garden enclosure; they abandoned the ever evidence that and no They, re-entry claim. under a new thereof later made a and therefore, pos- of adverse for their claim now have no basis session. any description allege Respondents prove or

2 garden failed trial court could reason the them. For that claimed They it. had the burden judgment render their favor so, identifying tract, they do the trial failed to since judgment favor of the record owners properly court rendered Qua, 2d Surkey tract. 173 S. W. for title to the entire ; Thompson merit) Lumber (error York v. for want refused Co., 169 S. 187.W. grounds rely upon affirmance of for an

Petitioners other opinion judgment, are the trial we court’s but since discussed, ground judgment should affirmed on the above any opinion unnecessary express find it on the other we grounds upon. relied question appeal, independent

No of those has been raised on against concerning title, portion judgment about respondents the land. for the value of cut them from timber judgment Appeals of the Court of Civil is reversed and that of the trial court is affirmed.

Opinion delivered June hearing part Associate Justice Smith took no de- cision of this case. Company

The Missouri-Kansas-Texas Railroad v. C. E. Evans 25, 1952. No. A-3443. Decided June Rehearing July 23,1952. overruled (250 W., Series, 385.) 2d Penland, Dallas, Sherman, Nelson, H. Freels & Elliott of G. Montgomery Montgomery, Robertson & and D. Allan all of Falls, petitioner. for Wichita holding Appeals upon

The Court of Civil erred in that trial, probable new different verdict would not result from newly judgment respon- discovered after loss of eye was in fact dent’s due to cancer which existed at time injury. Co., 29, claimed Tenant v. Peoria & P. U. R. 321 U. S. 520, Sup 409; Commonwealth, Ct Hines v. 136 Va. 431; Bass, A.L.R. S.E. Mitchell v. 26 Texas 372. Allen, Crampton, Perry Kowri, Kearby Perry, Locke & Falls, respondent. all of Wichita for Appeals holding The Court of upon Civil did not err in probably a new trial a different verdict would not result from newly the so-called discovered evidence since the evidence on point conflicting was to the same extent it conflicted during petitioner’s the trial when the doctors testified that rust disability did respondent. not cause the Williams Southern Life and Reimers, Health Ins. Co. 208 2d S.W. Gowan v. Kaufman, 2d S.W. Tabet v. 2d S.W. opinion delivered the of the Court. Mr. Justice Griffin Respondent employed by petitioner as a brakeman and operating a a crew member on November Falls, Altus, to Wichita freight proceeding Oklahoma causing burst, brakes an airhose While enroute Texas. brake- Respondent and another “set”, stopping thus the train. ruptured hose disconnect the attempted a wrench to man with not turn the would The wrench replace a new one. it with got coup- connection, respondent under then hose or its a hammer in an ling upon the connection apparatus and beat gotten doing, to have rust he claims it. so effort loosen While he eye. Respondent then went testified that and dirt in his left eye job. His engine finished the to began and the other brakeman upon give pain at Wichita arrival him considerable office, afternoon, early the doctor’s Falls, he called in the and dirt got response. home, some rust wife removed no At his following day, offices of the eye. visited from his On the railway organization treatment and employed by for doctors hospital. day admitted or so was Respondent under plaintiff trial court filed suit A., Liability Act, Employers’ the Federal Title U. S. C. Sec- damages against petitioner seq., his in- tion et for negligent juries petitioner, acts suffered virtue of certain Appliance Act, petitioner’s Safety and also for violation A., Upon the case Title U. C. 1-16. Secs. submission company, jury, to a a verdict was returned “that the railroad connection; (a) (b) permitted to collect the airhose rust connection; inspect (c) failed to failed airhose and its inspect permitted properly power system; (d) the the brake out; (e) to worn hose remain on its car said hose was while negligent manner, maintained airhose and connection in the negligence foregoing of acts all the constituted proximate injury respondent to his were causes respondent received of the eye. any In con- addition was from acts of absolved tributory negligence. damages in sum were assessed of The given $40,000.” respondent Upon judgment such verdict against Company. $40,000 for petitioner, Motion Railroad duly filed, heard, for new trial was amended and and overruled by opinion. in the trial This later court. will be discussed Upon appeal Appeals affirmed of at Fort Court Civil Worth judgment requiring $20,000. 243 of after remittitur SW 2d 181. engaged Unquestionably petitioner

1 com- in interstate alleges injury. respondent merce his the time received Safety 45, (otherwise Section 1 of Title A. known as the U. S. C. 344 any Act) unlawful for common carrier en-

Appliance makes it any run train in such traffic gaged commerce in interstate it, equipped with number of cars not a sufficient has that power engineer brakes, on the locomotive so that requiring speed its without drawing control train can purpose. This for that hand brake the common to use brakemen commonly railroads on their trains. used air brakes covers must main- the air mean that brake held to has been This Meredith, v. 292 U. S. Fairport, & E. R. Co. P. tained for use. statutory liability 826, also that 589, L Ed 78 S. Ct. upon Appliance the car- Safety Act is not based imposed duty carrier and the is not an on absolute rier’s Brady showing assiduous. v. by any care however of excused 10, 426, 82 L. Ed. 614. Asso., 58 S. Ct. R. 303 U. S. Terminal Safety Appliance has Act been held protection of the “has been inspecting Idem. The statute cars. those extend right recovery every give a liberally as to so construed” comply a failure to of which was injury, Chicago, P., M. St. requirement the Act. Swinson 1041, 529, 517, Co., 79 L. Ed. 55 S. Ct. 294 U. S. R. & O. Co., A. B. R. 338 U. Atlanta & St. S. L. R. Carter v. A. Wolfe, 236, (5). 226, In Davis v. L. Ed. Ct. S. reviewing after the earlier Ct. U. S. failure to com- cases, recover “if the that one can the court held requirements Act cause of ply with the discharge resulting accident, him while in the engaged although operation in duty, in an which the of safety appliances designed pro- specifically to furnish him are company held that failure railroad tection.” It has been power operating compliance use with the to requirements brakes trains Safety Appliance is an action- Federal Act driving able automobiles breach towards travelers highways, passengers. employees and as well as toward railroad Fairport, Meredith, supra. P. & E. R. Co. v. Injuries employees repairing received system protection

brake are within the Act. In the case Coray Co., v. Southern Pacific 335 U. S. 69 S. Ct. Supreme 93 L. Utah, appeal Ed. Court judgment dismissing plaintiff’s suit, although held “that railroad ran its brakes, thereby train with defective ‘violated duty owing’ no to the decedent.” The Utah court said that object Safety Appliance Act insofar as brakes are con- cerned protect employees is not to standing, from but from mov- ing reversing trains. In sending the case and it back for further

345 Supreme opinion” inconsistent proceedings “not said: States the United Court of narrowly. It commands purpose so the Act’s not view do “We abrupt An or with defective brakes. run trains not to

railroads unexpected dangerous might equally to brakes be stop due bad stop because a failure employees others as interpreted, Act, fairly must be held to And this brakes. bad dangerous results due to protection protect from all need who congressionally prohibited defective operation or maintenance Meredith, 292 U. S. appliances. Fairport, E. R. v. P. & Co. Liability 826, 1446, 1451, 589, 597, NCCA 388. L. 54 35 78 ed S Ct injuries Safety in- Appliance Act for of a railroad under the the un- follows from as a result of Act’s violation flicted posi- ‘not equipment prohibited lawful use defective may doing may be employee work tion in or the which injured.’ Brady R. Asso. at v. Terminal the moment when he is 10, 614, 618, 16, L Louisville & 303 82 58 Ct. US ed S 933, 621, 931, Layton, 617, 37 S Ct N. R. v. 61 L ed Co. 243 US undisputed 456. In this case where evidence established ap- suddenly stopped the train of defective air-brake because pliances, petitioner if this defective was entitled to recover equipment contributory cause of sole or 239, employee’s Wolfe, the decedent 263 death. Davis v. US 287, 64; Spokane L ed 44 & E. R. v. S I. Co. Ct Campbell, 1125, 1135, 1136, L US ed added) (Emphasis S Ct 12 NCCA 1083.” Further, provides penalty A. Section of Title U. S. C. upon any “using, hauling, permitting or or be used requirements any subject hauled on its line” car Safety Appliance appliances, Act further with defective exempts liability properly a railroad from if car been has equipped equipment or insecure becomes defective while being being carrier, place “hauled from used such and is equipment where such was first discovered be defective point car can be to the nearest where insecure available * * * repaired, necessary to make such re- if such movement is repair repairs except at such pairs ca/nnot and such be made *” * * language point. (Emphasis added). is clear Such meaning repairs must be made can have no other than that the repaired. place discovery so Chesa- if the defect can be F.805, (6th Cir.) peake Ry. writ O. States Co. United cert, (4th denied; Chesapeake Ry. & O. Co. v. United States (8th Cir.) R. 226 F. Denver & R. Co. v. United States G. Chesapeake Ry. Cir.) 249 F. & O. Co. United States (4th Cir.) 213 F. 748. repairs

The evidence in the case at is uncontradicted that bar place coupling could dis- be made at the the burst air hose crew, including covered, and that it was the of the train Evans, making repairs. respondent, or assist in make directly point, and in A case present which controls our action Paul, Minneapolis,

case Ste. Marie Rail- St Sault Goneau, way Company v. Ernest J. 269 U. S. S. Ct. freight a L. Ed. the rear brakeman on 335. Goneau was train, being operated by company railroad when the while stations, stop- Upon in two. the train en route between broke ping, the halt. went forward to ascertain the cause of Goneau cars, stopped had He found the break between two which been bridge open ties, upon that the a narrow wooden with break coupler rear of the last car resulted from defective end discovering part Upon this defect of the front of the train. Go- get duty” coupled up neau “as was his again undertook to the train put proceed upon journey. so that it could its He some part coupler slipped had out of “shims” under of the which place up part with the rest of so as to raise to interlock coupling signal coupled Upon device. the train was then his but, together pro- journey, after train started on its ceeding only feet, again the same few broke two between Finding bridge. coupler in its former con- cars on the same dition, attempted coupling. he then to make another To do this again ties, open he with his stood between the cars on back bridge; and, before, put to the of the one knee under outside iron, and with one hand the drawbar to raise it from the carrier attempted pull right angle carrier iron around to a with caught manner, and he drawbar. The carrier iron some himself, failed at first it. then braced lifted more to move He knee, gave pull, with his carrier iron harder causing right easy”, both hands. foot This time it “came his and, balance, drop ties; losing down fell between the ground bridge below, backwards over the side of the to the sustaining injuries. prescribes serious 2 of Title Section hauled, permit shall be unlawful to haul or to be etc. any equipped couplers, car not with automatic etc. part Safety Appliance Act. company grounds defended

case did not come have within the Act and should not been sub- being car, mitted to (1) because the defective motion- use; (2) accident, Goneau was not then less the time movement, operation engaged any coupling or car the defect was doing place where repair work at the was but ; (3) (Sec. 13) permitted by Act the discovered was first making repair; the the incidental had assumed risk Goneau merely iron was of the carrier (4) defective condition the making repairs, the presenting for the occasion a condition petitioner in accident. of the not cause upon arguments. Recovery in makes these same case effect The court in all below. jury was Goneau courts verdict had adversely railroad com- to the disposes all of these contentions in car the pany was use as follows: The court held that the accident, and of time the doing engaged repair in it said that was “Nor can Goneau brakeman, man, repair and was not but a was not a

work. He place iron, attempting it into to move repairing carrier the coupling be made and support coupler, the could the so that * * * although Goneau, testifying, in proceed. And the train coupler in a condition that it, that when found the such stated he couple up the he fixed it became his train unless could not he get going’, of word ‘repair it the train his use the great Railway lays stress, upon Company ‘repair’, which the law, change eyes in the or transform the situation does coupling operation repair work. the into coupler, in injured result the defect the was as a of “Since he making adjust purpose attempting of an im- it for the while coupler clearly a proximate coupling, the defective mediate distinguished creating from a condition of accident as the Employers’ in And under the which occurred. situation the Liability held to have assumed the risk. Act he cannot be * * * tending there was to show that

“As substantial resulting coupler cause of accident defective engaged making injury to while he was in in the Goneau discharge rightly coupling duty, in the case was of his sub- Safety Appliance Act; jury under and the mitted to having favor, judg- in issues been determined his properly Wolfe, the trial court was Davis ment of affirmed. Sup. Rep. 68 L. ed. Ct. 64.” 263 U. making analysis

In the last doctrine that brakeman standing engaged repairs upon a in interstate commerce proposition of cannot recover is based law that an injured party injuries doing recover for cannot suffered very thing contracted, or undertaken to This has do. phase

but another assumption of doctrine of risk theory nonliability. brought This action is under the Federal Employers’ Liability governing employees, Act as being Section 51-60 of Title A. U. S. C. Section 54 of this provides: title brought against any any

“That action common carrier any provisions chapter of this under or virtue damages to, of, any injuries recover or the death its employees, employee held to have assumed such shall not be employment any of his case where such or risks any part death resulted in whole from the or officers, carrier; agents, employees of the employee and no employ- the risks of his

shall be held to have assumed any carrier ment case the violation such common where any safety employees of statute enacted for contributed the of employee.” to the death of discussing Act, particular provision In the Tiller of 54, 444, Co., v. Atlantic Coast Line R. 318 U. S. 63 S. Ct. 87 thorough 610, 967, Court, L. Ed. A. dis- 143 L. R. the after a up passage cussion of the the cause that led to the of 1939 54, (as- amendment maze of law Section said: “It was this sumption risk) Congress swept of with which into discard the adoption Liability Employers’ of the 1939 amendment to the Act, releasing employee assumption from the burden of of by cit., col., risk whatever name it was called.” Loc. 1st. 87 616, again L. a jury Ed. “No case is to be withheld from any theory negli- assumption questions of risk and gence charge proper should under the court be submitted idem, col., p. to the their determination” 1st. 618. upon liability company In a suit aof under the Employers’ Liability Act, allegation employee injured company as a result of the failure of the railroad comply Safety Appliance Act, with the it has held as been follows: early swept

“But this Court all issues of out of Safety Appliance cases under the Act. For reasons set forth length books, equip- our held Court failure perform required by Safety ment Appliance Act is wrong, way negli- in itself an dependent upon actionable in no gence and for the liability results which there is liability —a escaped by proof diligence. that cannot be of care or St. Louis Iron Taylor, Mountain 281, & S. R. Co. v. 210 US

349 Q. Chicago, R. Co. 616; B. & 1061, 1067, 28 S Ct 294, 52 L ed 589, 588, 31 ed 575-577, L55 (220 States, supra US v. United 580, 220 US Fran. R. Co. & San 612) ; Louis v. St. Delk Ct5 holdings rigorous were more These 590, 617. 31 S Ct. L ed speaking Hughes, for the Justice recently Chief epitomized upon the carrier’s liability not based statutory is ‘The Court: carrier one absolute duty imposed an negligence. The showing assiduous.’ however any of care not excused 614, 618, 10, 15, L ed 303 US Brady R. Ass. v. Terminal Co., R. 338 U. S. Elgin, E. Joliet & v. 426.” O’Donnell 58 S Ct 187, Ct. 94 L. Ed. 70 S. 163, 69 S. Ct. Thompson, U. S. v. also Urie See of how discussion R. 252 for a L. 2d L. Ed. A. applied by court. two are to acts be petitioner brings contentions This us down to the alleges held respondent he suffered cannot be injury which bursting In proximately airhose. all caused arising Safety Appliance under under Act and suits obligations rights Liability Act, Employers’ Federal parties depend principles on such act and of common Bailey applied law as of the United States. Central courts Co., Vermont R. 319 U. 63 S. Ct. cit., col., p. 1447; Ry. Co., loc. 1st. Sears v. Texas & N. O. Warden, App., 266 N. O. R. Co. v. Com. SW Texas & Com. App., 2d Smithers v. Fort Worth SW Ry. al, App., 6 D. C. et 272 Rio Co. Com. SW Grande al, Dupree App., E. P. & S. R. 55 2d 522. F. Co. v. et Com. SW The Federal cases hold that this matter of causation must complete jury be submitted to the unless there is a absence of probative jury’s finding. support facts to In Lavender v. Kurn, 645, 740, 916, 327 L. U. S. 66 S. Ct. 90 Ed. it said: is tending

“It is true that there is to show it that was physically mathematically impossible the hook to strike Haney. might reasonably And there are facts which it Haney inferred that was murdered. But such evidence has be- upon appeal, being come irrelevant a there reasonable basis inferring Haney. in the record for that the hook struck The having jury inference, respondents made that were not relitigate reviewing dispute free to the factual court. Under jury’s these circumstances it would be an undue invasion of the weigh appellate function for historic an court the conflict- ing evidence, judge credibility of witnesses and arrive at 350 jury. Tiller v. opposite

a conclusion from the one reached 617, 610, 54, 67, 87 L ed Atlantic Coast Line R. Co. 318 US 618, 967; Bailey R. 63 ALR Central Vermont S Ct 143 1444, 1447, 1448, 350, 353, 354, L S Ct Co. 319 1062; ed US 29, 35, L ed R. Tennant v. Peoria & P. U. Co. US Moore, 520, 525, (NS) 647. See also S Ct 15 NCCA Interpretation in Railroad Cases “Recent Trends in Judicial Marquette Employers’ Liability under the Federal Act.” L. Rev. 73. specu- say jury’s involved

“It is verdict no answer to dispute or the conjecture. lation and facts are Whenever may in- draw different evidence is fair-minded men such that ferences, conjecture required speculation measure of dispute part on the it to settle of those whose choosing infer- the most reasonable what seems to them to be probative Only complete facts ence. there is a absence when ap- support error does reversible the conclusion reached here, evidentiary for the pear. where, there is an basis But jury’s verdict, what- jury to discard or disbelieve is free appellate And the conclusion. ever facts are inconsistent with its evidentiary basis be- court’s function is exhausted when might being draw apparent, the court immaterial comes contrary is more another conclusion inference or feel that reasonable.” Appeals, relying of Gris the base Court Civil affirming (7th Cir.)

wold v. 155 F. 2d Gardner propo phase place on the seems to its-decision case pur Supreme to all intents sition that the U. S. Court has poses employees re made the railroads an insurer of its ques quiring the submission of Liability Employers’ juries tions to under the Federal suits McCarthy, (1948)336 In U. S. Act. the case of Wilkerson v. majority opinion, concurred S. Ct. Court, Supreme justices seven of the U. nine incorrect, and that that such statement above is demonstrates only giving by requiring judge court is the facts the ago, sixty years when in effect to doctrine enunciated some Tennessee, Virginia, Georgia Company, Jones v. East Railroad 443, 445, 118, a 128 32 L. Ed. 9 Ct. unanimous U. S. long system reason, jury court said: “We see no so as the jury to de the law of the land and is made the tribunal fact, disputed questions why decide such cide questions it should not (negligence, etc.) well as others.” The as these as proxi- applies question of rule the Federal courts to the same 351 Myers Reading mate Co., cause. See also v. U. S. Canadian, Ry. Co.,

S. Ct. Cusson v. Pac. 2dF. finding Our support Texas decisions will that the burst- ing of the contributory injury, airhose awas cause of by found keep in this case. We must mind that company duty owed an to an absolute have airhose. that per defective, was not worn out and it was that part

se on company operate of the railroad so airhose; duty such defective it was the trainmen replace, repair, they the airhose law- before fully train; could move the the train conductor testified was the of the brakeman to hit the connection when it “frozen”; e., i. could wrenches; not be disconnected with the respondent and other trainmen testified it was not unusual frozen, these connections be and for the trainmen to have to jar hit them so as to the connection loose in order to replace able to the burst hose. Under the above facts we think that company the railroad could have foreseen that replacing airhose, such a beating upon defective and in connection, injury, one, might or a by similar be suffered required change those the hose.

As said Flores, this court in Sullivan v. 134 Texas 132 SW 2d 110: “It (defendant) sufficient if he anticipated should have general an nature of that suffered this minor. is, doubt, It no spare unusual for a tire to be knocked from its setting put collision, in motion but that fact does not negligent exonerate the liability. driver person As a ordinary intelligence prudence, anticipated he should have danger negligent act, others created and the rule require anticipate just

does not injuries grow that he how will dangerous out of that situation. question presented “The here has been before this court cases, several recent and it is believed that a further discussion nothing thereof would add Among lately to what has been so written. may following: the recent cases be noted the Missouri- McLain, Kansas-Texas R. Co. 133 Texas 2d SW 474; Carey Distributing Corp., v. Pure 124 SW Pagel, App., 2d Sturtevant v. Tex. Com. 2d 1017.” SW all present case, Under the facts and circumstances of the other findings airhose —and jury the burst

the that injury are findings the the related —was force, and under the probative supported evidence of some courts, powerless to aside are set we the Federal decisions of law, hold, was findings, that there matter of and to as a such sup- Having to evidence held that there some no causation. Safety finding the Federal port jury that the violation the coupling having awas defective airhose Appliance Act in the alleges re- respondent he injury which cause of grounds unnecessary the other ceived, for us to discuss it becomes alleged regard permitting dirt by respondent to liability with metal connec- airhose and its and accumulate on such rust running length full of the car. pipe air tion to the on ac- motion for new trial we consider the Next come to Evans, respondent, newly count of discovered evidence that allegedly eye. received had his left This was a cancer case started November 24, 1949; November trial later. After and was rendered some time verdict trial, filing by company new motion for but the railroad of its it, eye respondent had had his left before the trial court heard out, that taken and then the first discovered it was for time suffering eye. company railroad from cancer said immediately trial so as include amended its motion new hearing information, this new was had on the motion for court, hearing testimony, after trial. The trial overruled company’s new motion for trial. This action Appeals Fort on the affirmed Court of Civil Worth ground newly would sole discovered evidence of cancer probably not result in a different verdict on another trial opinion its the cause. court We are of the the trial abused granting petitioner per- discretion in not a new trial mitting upon case, jury, passing this to have merits of it this read over the state- before to cancer. We have trial, ment of facts was not word in the main there one by any witness, lay medical, respondent said indicate eye. had a cancer in read his left have also over the state- We hearing trial, ment of facts for new on the on the motion agree knowledge Appeals we (1) the Court of Civil trial; acquired parties (2) of the fact was all there after the failing diligence petitioner part was no lack of on the trial; prior ascertain the fact to the that such fact and (3) cause, evidence is material most to the trial of the we do agree (4) with that court we think because evi- probably change dence would the verdict another trial. giving least, justice will be served At we feel that better Bass, Texas Mitchell v. of such evidence. benefit Barron, SW Texas P. R. Co. v. App. Halliday Lambright, 68 SW v. 29 Tex. Civ. Maxcy Norsworthy, App., 2d writ dis v. Tex. Civ. SW missed; Forshagen Payne, App., 2d Tex. 225 SW Civ. Smith, App., 49 history; Tex. Civ. SW

no writ Alexander v. App., history; Parry, Tex. no writ Hines v. Com. 886. SW judgments

The of both courts below are reversed County cause remanded to District Court of Wichita the proceedings opinion. further not inconsistent with this Opinion delivered June Smedley Wilson, joined by

Mr. Justice and Gar- Justices wood, dissenting. respectfully

We dissent should be ren- because this case dered for the law defendant and not remanded. As a matter of bursting proximate the air hose cause of the was not the plaintiff’s injuries. proximate

The facts on cause The burst- are uncontroverted. ing system pressure of an air hose released the air in the brake automatically applied stopped the brakes. This the necessary replacemement and made the of the defective hose attempting a new hose. Plaintiff was defective to remove the got eye. hose when he rust and dirt in his opinion are of We that an sustained while re pairing piece machinery proximately not caused machinery making defect necessary repairs. in the Such defect is in law a remote cause. No one would contend that defective hose could be the in case at bar if and, shop repairs this car had been hauled into a to make the working gotten while shop, plaintiff on it in the had dirt and eye. making rust repairs out What is the difference (1) majority rely case, the track? The but Goneau authority contrary proposition that case is for the exact majority. announced In that case the defect was coupler plaintiff injured coup and the was while in the act (1) Minneapolis, Railway Company St. Paul v. Ernest J. Sault Ste. Marie Goneau, 269 U.S. 46 S. Ct. 70 L. Ed. 336.

ling trying coupler perform cars and as a to make the while coupler. specifically points re The court was not out pairing coupler, and, opinion, construe that the court as we coupler repairing would there have held that had he been would have been no cause. court said: doing repair engaged “Nor can it be said that was Goneau repair man, brakeman, not work. He was not a and was but repairing place iron, attempting it into the carrier to move support coupler, coupling so made and could be * * proceed. the train *.” plaintiff injured

In the case at bar the not while either setting releasing stop- injured or the brakes nor was he ping starting plaintiff of the train. In the case the Goneau engaged repairing actively "coupler ef- but was fecting couple injured. very a In case at the time was plaintiff repairing they at bar brakes so that would perform applied. Coray Co., when 335 See v. Southern Pacific 520, 275, Chicago 208; U.S. 69 S. L. E. Ct. 93 Ed. Reetz v. & Ry., 46 F. 2d. 50. (as The “force” of used the broken hose word force proximate cause) expended the literature of came

to rest stopped. Beale, Consequence when the train The Proximate Act, Review, an 33 Harvard Law 633. This is not a continu of ing together and unbroken of as succession events so linked a entity make natural of action. Milwaukee & P. Railroad St. Kellog, 469, v. 7664, 94 U.S. F.C. 24 L. Ed. 256. the train When stopped got situation, and the contemplated crew out and entity they one of repair action ended. When decided to hose, bursting becomes, another started. The of hose after stopped events, the train and as a to future or cir condition cause(2) proximate Wolfe, cumstance and a Davis v. 263 Ry. 239, 64, 284; Chicago, U.S. 44 S. Ct. R. I. & G. Sears, Co. v. App., 684; Tex. Com. 210 v. S.W. Collins Ry. Co., 477; 577, Pecos & N.T. 110 Texas 212 S.W. Texas & Ry. Rooks, App., 554; N.O. Co. v. Tex. Com. 293 Paris & S.W. Ry. 1019; Stafford, App., G.N. v. 53 Co. Tex. Com. S.W. 2d. (2) controversy Keeton, lively causation, following For a over see the articles: Negligence, Duty Texas, 1, Carpenter, and Causation in 16 Texas Law Review Cause, 1, 115, 416; Proximate 14 Southern California Law Review Southern 1, Review, 304, 427; California Law Law Southern California Review 61, 275; Green, Law, Negligence Proximate Cause Texas Review 28 Texas Law 471, 621, 755; Wilson, Thoughts Negligence, Some About 20 Oklahoma Law Review 275; Morris, Minnesota, Review, Proximate Cause in 34 Minnesota Law Refining Tips, 2d. 125 Texas Phoenix Co. v. S.W. 439, approved Erisman, on this

Thompson 2d. v. 157 S.W. Atchison v. Texas & point, 2d. Texas 167 S. W. Ry. Co., 2d. 228. 186 S. W. P. a distinguishable case clearly from such

This situation is App., Ballew, Ry. Tex. v. Com. F. Co. as Gulf C. & S. emergency application 2d. the unauthorized where S. W. the train passenger put a on strain of the air brakes plaintiff coupling split broke and the train. device emergency split the train. There sections of fell between passenger and the defective application of the brakes joined coupling concurrent cause. Neither device plaintiff’s where fall line of cases does this case within following safety normal re- defect device is a action sponse danger. plaintiff’s apprehended Here

to the stimulus duty. performance a routine Affolder action was the routine York, Ry. Co., Supp. 365, L. 79 F. reversed New C. St. negligence question question approved on on the but including response proximate cause a normal to the stimulus of danger apprehended in 174 F. 2d. 486. This was in turn reversed question and the trial affirmed on the court approved question both courts below were cause. 339 U. 94 L. Ed. 683. S. Ct. Safety Ap-

A cause of action for violation of the Federal pliance neg- Act should not be mixed with a cause of action for ligence. brought Employers’ properly Both are under the Federal Liability liability Act. Because the railroad under the the of Safety Appliance appliance is Act is if the defective absolute neg- proximate injuries problem the of cause of the there is no ligence safety involved. a cause of action for a defective While may litigated appliance joined and in the same suit with a be negligence, separate kept cause action of for the two should be separately only jury. and be submitted to the It added confusion bursting plaintiff unnecessary proof of the to offer that the Elgin, negligence, the hose due E. to 384, O’Donnell v. Joliet & Ry. Co., Sup. Rep. L. Ed. U.S. Ct. plaintiff adds more confusion for this court to hold that the damages alleged separate

can recover for caused a act of negligence upon Safety a cause the of action for violation of Appliance bridged gap Act. This the of cannot element foreseeability proximate scope in the definition of cause. The duty braking of system the absolute required to maintain the injuries limited to of sustained and at the time of a failure braking system operate properly. duty There no to to braking scope system repair. The a which will never need have duty expanded by of a to the element cannot be resort foreseeability proximate in our of cause. definition majority proximate jury holds there a on issue “the causa- because Federal that this matter of cases hold complete tion must a jury be submitted there is to unless probative jury’s finding,” support absence of facts to courts, powerless “under the of we to decisions the Federal are law, findings, hold, set aside such of as matter a agree. there was no acusation.” this we cannot Since With scope a is established of law and since as matter uncontroverted facts on causation establish that did nothing scope duty, fall within the of there was under our practice jury Texas submit to a causation. Hawthorne, Ry International & G.N. Co. v. recognize construing 2d

S.W. Federal We statute the Federal prevail. of definition cause must defining proximate But under the Federal cases cause there was Therefore, weight no cause as a matter of law. no given contrary. jury should be a own verdict Our judge*jury Texas Constitution and law should determine our relationship philosophy present majority and not the Supreme United States Court. controversy jury

This same over the function of a and the given finding jury question effect to be aon of law is reflected judicial writings Supreme recent of the United States Sup. McCarthy, Court. See Wilkerson U. Ct. 497; James, Judge Jury Neg Functions amd ligence Cases, 667; Enlargement 58 Yale Law Review Jury's Cases, Function in FELA 44 Illinois Law Review 854. working jury jury The view that a trial consists of a under the judge direction and control is the traditional and sounder practice view. In our Justice the Peace our Constitution court provides that both the law and the facts should be submitted to Although jury. frequently unsatisfactory lawyer, it is to a justi bring customarily the advocates 3 court their law argue jury. books both sta ites and cases In bar, trial a district a at court P5- case one lawyers argument necessarily would their be confined proximate charge-. definition of cStise contained in the court’s they justice they Thus a will not have freedom have in court argue question jury. when forced to Mw to a Where there credibility, question no conflict in evidence and no argument only jury side to can an effort each become jury cause show the how court’s definition applied pleadings and a uncontroverted should be to the set of Traditionally in considered a law facts. Texas this has been argument practice judge. and is in for the This is the better concept accord with our the constitutional function conducting finding judge jury on trial. The given weight procedure under no or Texas should be effect at all. bursting

Leaving aside now the consideration of the Safety Appliance Act, allegation plaintiff’s hose that the negligent having railroad was dirt and rust on the connection Employers’ Liability should be considered under the Federal (45 U.S.C.A., 51-59). Co., Ry. Act Carter v. Atlanta & St. A. B. 338 U. S. 94 L. Ed. 236. S. Ct. poses problem

This of conduct. standard “The standard question non, experi- test vel is the common * * Mfg. ence of mankind Press Southern Cotton Co. v. Bradley, 52 587. The Texas standard must be reasonable and possible. Ry. Staffard, supra. Paris & N. Co. v. G. Where the required standard is that in the care and maintenance of ma- chinery, possibility it must be within the achievement reasonably prudent technological develop- defendant within the prevailing particular industry particular in the ment Ry. Levi, 674; Trinity time. Texas & P. Co. v. & B. Ry. McDonald, App., V. Co. Tex. Com. 208 S. Ft. W. Ry. Amason, App., & D. Tex. Worth C. Co. v. Com. 276 S. 162.W. falling plaintiff’s eye The substance into was rust and dirt “foreign matter,” meaning foreign eye. the human The pleading, sample proof, special a fair and the issues on (3) point are set in the out footnote below. (3) plead: Plaintiff “* * * large quantities foreign rusty of rust and other matter fell from the * * * lodged eye. your plaintiff’s connection of said hose and left and as a foreign falling result of the rust and other matters and substance from said hose your eye, your plaintiff’s plaintiff sight connection into eye left has lost the of said * * totally and is blind in same. Evans Plaintiff testified: you “Q. beating it, you? My eye got anything happen As were A. did ** * “Q. only you dropping full of rust and dirt.” had was hit, force the dirt eight Q. that six or inches ? it fell in there. Did you A. I don’t know how hard you your eye directly was, yes, Q. say have I under it? A. I would sir. Were impossible operate freight

It would prevent be train and particles “foreign” eye collecting dirt and upon to the human freight the connections on the underside of a car. The law negligence attempt compensate every does not risk every danger, Worthington Wade, 17 S. W. only but prudence those which would elimate. This is not majority assert, assumed risk as the but is inherent in the duty. definition of The Federal statute on risk assumed relied majority change duty, should not the definition of apply only should duty after a has been established. The is prudent, to be prudence and all risks which do not fall within the test of simply are concept risks which are covered not negligence. day’s In the course of a work dirt and rust could any part freight might be knocked off of almost train and eye fall into the of a member aof crew. Whenever a standard impossible, conduct is unreasonable and this court should negligence hold no as a matter of law. Appeals placed Court of Civil Gardner, decision their on Gris wold v. authority 155 F. 2d 333. On of Wilkerson v. McCarthy, 366 U. S. 69 S. Ct. 93 L. Ed and Af York, Ry., supra, folder v. New & L. C. St. we should hold that construing the statute involved and the decisions it do not im pose upon a liability railroad the absolute of an insurer. It is compensation opinion workmen’s act. In the of the writer compensation enactment of workmen’s law for railroad employees legislative objective. is a desirable However desir- * * * looking up it, straight up? put I think I was.” Mrs. “Q. When Evans eye drops in, get anything your eye? got did she out of A. She lots of stuff you Yes, any it; out. DidQ. see of it? A. I looked at it looked like dirt and rust.” Mrs. Evans Plaintiff’s wife testified: home, you anything eye? “Q. When he arrived at did do with his reference to Well, eye? Yes, A. I water boiled some and washed it Q. out. Was that his left A. got dirt, something way analyze and I some rust or didn’t have no it. Q. —I analyze No, sir, You didn’t say it to see whether it was dirt or rust? A. I couldn’t particles larger particles as to that. Q. Was it little fine like dust would be or pretty good eye. like rust? A. It looked like lot in an Q. It looked ** * larger particles 24th, a little than small of dust? A. “Q. Yes” On the you eye when he returned warmed the water washed his and rubbed Kleenex, you got eye? Yes, it is when the rust and dirt out of his A. appearance eye red, any eye sir. Q. What was the of his then? A. It was like * * * you get something scratching eye.” when in there and it Mrs. “Q. Evans, you wiped eye, you when this stuff out of his know whether it was didn’t dirt, was, you? No, way analyze rust or what did A. I have no to occurrence') it.” didn’t (the plaintiff Dr. Johnson doctor to examine testi- first after fied: you compítete “Q. What kind of examination did make? A. I examina- made a any foreign body tion eye? eye. nothing and didn’t find in his You found in his Q. you any anything eye? A. Q. No. Did find there had been destroy- in the courts able, not be achieved should this result proximate cause. See Mr. ing concept Railway, concurring opinion in Carter v. Frankfurter’s Justice supra. year of law in the as matter should hold that We freight keep the air hose connections on of a railroad to

failure foreign rust, particles a human dirt and free and clear of car negligence. may eye come when such standard The time requirement. an unreasonable of cleanliness would not be reversed and rendered for the defendant. This case should be Opinion delivered June 1952.

Rehearing July 23, overruled 1952. Railway Company Bailey. Dallas & Terminal v. Sarah Jane No. A-3553. 1952. Decided June

Rehearing modified and July 23, overruled (250 379.) 2dW., Series, irregularity scar or in the cornea.” A. No foreign There was no medical matter was testimony removed from the eyeball. interior issues submitted to the are: special you “Do find from a preponderance defendant Missouri-Kansas-Texas Railroad rust to collect Company, permitted upon the connection which connected air ‘yes’ hose to the car? Answer or ‘no’. Answer:

Yes.” n permitting “Do you find of the evidence preponderance rust collect upon the connection which connected air hose to car, if have you so found, ? Answer ‘yes’ ‘no’. Answer: Yes.”

Case Details

Case Name: Missouri-Kansas-Texas Railroad v. Evans

Court Name: Texas Supreme Court

Date Published: Jun 25, 1952

Citation: 250 S.W.2d 385

Docket Number: A-3442

Court Abbreviation: Tex.