Missouri-Kansas-Texas RR. Co. v. Shelton

the apprais- appraiser of the designed was to arouse doubt The State’s testified Scarbor- hearsay ough advantage of er’s attitude. The evi- tracts had the a service unbiased benefit, road, properly suggests dence not be considered but could which prop- proof property that a there in the sale is no evidence that all occurred, community properties erties had did not share same advan- stated, prices tage. already sold or as evidence of view of conclusion .for Scarborough expressed tract further is war- market value of discussion (State ex- ranted. Oakley). v. The function of the cluded evidence to make known to the was filed new trial The forceful motion for appraiser what said he used re-examination caused a careful State The as a basis of his value. disposition original of this the court’s appraiser’s goes excluded evidence study appeal. it has Following further qualification express opinion. an And as original opinion been concluded that

previously noticed, qualification was not de- disposed case, opin- properly but the seriously nied challenged. or. precise put in more very ion could well opinion is substituted language. This is not convinced This court judg- first, The is withdrawn. testimony, it be the absence of the excluded affirmed and ment of the trial court is apprais showing the cumulative of respectful- re-hearing is motion State’s in nature and qualification, secondary er’s ly overruled. effect, the rendi probably caused limited improper Rule 434. tion verdict. of. This, distinguishable those case is Cannizzo, 153 Tex. City v. such as of Austin

324, City v. of Houston

Pillot, re Tex.Civ.App., 73 S.W.2d App.) (Tex.Comm.

versed other grounds, etc., non-hearsay CO., RR. MISSOURI-KANSAS-TEXAS subject comparable evidence of sales Appellant, points correctly of discussion. The State judge did not declare out. that the trial SHELTON, Appellee. H. T. However, ruling. basis he was - misconception, such prompted to rule No. 16343. unimportant excluding mistake Appeals of Court of Civil Texas. sales the rendi calculated cause Dallas. improper tion verdict. of an. May 15, 1964. fends off State’s appellee’s brief Rehearing Denied Oct. proposition countering with the point by proof the burden carried the State prove tracts of the severed but failed special and received a

Scarborough land property by other

direct benefit not shared supporting prop community. As appellees v. Davis cite: State

osition the writ; 861, no (Tex.Civ.App.) 140 S.W.2d (Tex.Civ. City of Friona Strickland N.R.E.; ref., wr.

App.) 294 S.W.2d (Tex.Civ.App.) Huber

City of Houston v. writ; Art. Ann.Tex.Civ.St.

Secs. Vernon’s

Sixty-seven special submitted issues were jury. answering to a these issues acquitted appellant in effect in all particulars except in its answers to 8, 65, 9, Issues Nos. 10 and which four issues were follows: answered as Appellant permitted chatt, (8) gravel, rocks, mounds of earth debris remain in the area alighted; negligence; (9) said act was appellee’s (10) injuries resulted in whole negligence; inor from such (65) appellee’s injuries not re- were sult of an unavoidable accident. any find did not act injuries. contributed to cause his 3, Appellant’s appeal, 1, 2, points on Nos. 8, 10, 14, 16, 18, 11, 12, all 17 and 13/ appellant’s involve main contention: ap- requiring the court erred ply appellant different than to standards to relationship. appellee in matters of causal issues The court submitted and definitions Nall, Denison, Thie, and & A. Elliott W. permitted ap- answers favorable to Sherman, appellant. for pellee appellee’s if found that Doss, Deni- injuries H. and Robert Charles Gullett resulted in whole or Foreman, Baker, Jordan, appellant’s negligence. and Shaw & But as to son contribu- Dallas, appellee. tory negligence for the court submitted issues permitted answers

and definitions which only favorable to DIXON, Chief Justice. appellee’s injuries proximately were Compa- Railroad Missouri-Kansas-Texas by negligence. caused his own $25,- appealed judgment from a for ny has only Appellant objected issues to the Shelton, a appellee H. 000 awarded to T. objected re- but as submitted court’s suit by appellant. The employed switchman requested and defini- fusal to issues submit in- brought damages personal required jury to tions which would have sought juries. Recovery was and apply the standards same Employers’ Lia- provisions Federal relationship. causal appellee matters of Act, U.S.C.A. bility Title §§ Liability Act Employers’ serious The Federal Appellee alleges that he sustained every provides expressly moving train Title injuries alighting from a while § engaged railroad being common carrier while result' of struck as a be liable alighted interstate shall which he commerce caboose train from injury employee suffering damages being but also as result struck part” “in resulting whole or-in engine coming opposite direction from an ‘ n provision This .adjacent negligence of the railroad. upon an track. decisions, met, upheld employee The burden of has been numerous pay obligation employer to Federal and State. arises, proof, damages when there is quote from the the Su- circumstantial, though entirely even Rogers preme the United States in Court of jury may from which the reason Company, 352 Pacific Missouri Railroad make inference.” 443, 448, 493: U.S. 77 S.Ct. Dennis Rio Grande See also v. Denver & “Under this statute the test of 208, 84 Western R. 375 U.S. S.Ct. jus- simply proofs case is whether the 256; Coray Pacific Southern v. tify with reason the conclusion 520, 275, Co., 69 93 L.Ed. 335 U.S. S.Ct. employer negligence played any part, 208; Ry. Page v. St. Louis Southwestern in in- slightest, producing even the the Co., Cir., 84; Campbell v. 5 312 F.2d are damages or death for Co., Chesapeake Ry. Ill.App.2d & Ohio 36 that, sought. It not matter does 276, 183 N.E.2d 736. evidence, jury may also with the the reason, grounds probability, at- opinions, are numerous some There .also causes, in- tribute the result to other by courts, of them Texas in which it is contributory cluding employee’s the controlling held Federal Statute is negligence. appraisal the Judicial over the common-law Or of a state. statute proofs to whether a determine Ry. Younger, Texas & Pacific Tex. Co. v. question presented lim- narrowly is is 557; Grande, Civ.App., 262 S.W.2d Rio E. whether, inquiry single ited to the Dupree, P. (Comm.App.) & S. F. R. Co. v. reason, may drawn conclusion the 522; and see the annotations employer negligence played the § 45, No. 54 Note of Title any part injury in at all the or death. 51, U.S.C.A. Judges sights primarily fix their are to 45, 53, provides expressly Title U.S.C.A. and, § appraisal to make test if that personal injuries that in actions for met, is to find that a for bound case death, employee injuries resulting for or the out whether the is made or not employee may 'the fact that the have been evidence the allows choice (cid:127) guilty contributory negligence shall not probabilities. ex- other The statute recovery, damages 'bar a but the shall be upon pressly imposes liability em- the bythe jury proportion (cid:127)diminished ployer damages pay injury or negligence such attributable to n death .amount part’ its due ‘in whole or upholding 'employee. many There are cases negligence. (Emphasis added.) provision, being v. .this latest Dennis “The law was enacted because Company, Denver & Rio Grande Railroad Congress was dissatisfied with the supra. also See Wantland v. Ill. Centra duty common-law of the master to his l 921; Cir., R. 7 237 F.2d Sears v supplants servant. The statute . 498; Co., Cir., Pacific Southern 9 313 F.2d duty far with the more drastic and the numerous under Notes annotations damages paying injury death or 45, 41-44, 53, Nos. of Title U.S.C.A. § at work due in whole or in employer’s employer negligence. applying -of this statute a definition stripped contributory negligence approved of his common-law been defenses has practical purposes inquiry proximate and for which definition includes the today rarely theory applied alleged presents these cause con cases single question tributory negligence employee. than more whether negligence Ry. employer played Chesapeake & Richardson Ohio Co. v. part, small, 860, denied, injury (1941), F.2d 313 U.S. however 116 cert. 961, subject death which 61 of the suit. S.Ct. 85 1531. See also L.Ed. 846 Seamas, v. such common law is in conflict with T. & F.

Atchison S. Co. Cir., and statutes. Erie Railroad Constitution 201 F.2d 140. Tompkins, 304 U.S. S.Ct. that under areWe convinced 114 A.L.R. L.Ed. United Statutes, 51 and U. Title Federal §§ Swierzbenski, Cir., States v. 18 F.2d S.C.A., court for the trial it was not error States, (Wagstaff The West v. United Jester inquiring wheth issues to submit Cir., al.), et F. Com- C.J.S. or in injuries in whole appellee’s resulted er 16,p. mon Law § negligence. have appellant’s by plain impelled conclusion to this been exactly point cases No on the issue in by the wording itself and of the statute by appellant been raised have cited us judi terpretation put numerous thereon we But cases none. there are strong lan opinions, especially point cial which seem to us to in the direction guage used employee’s holding regard of our Pacific Rogers Missouri United States liability for his own under Title opinion we Co., supra, from which RR. 53, U.S.C.A. v. Southern Pacific Sears § opinion. quoted in Co., Cir., earlier ; (Syl. 3) Atchison 9 313 F.2d 498 Cir., Seamas, F. T. & F. Co. 9 201 S. v. it that was We also convinced appellant’s 2d Nos. 140. We overrule Points submit court to not reversible error 1, 2, 3, 4, 10, 12, 13, 14, 16, 18. 17 and contributory negligence in issues such inquire of whether manner as to appellant says it In its Point No. 5 was, the al appellee’s negligence in of judg- was error for the court to base its instances, leged proximate cause a of jury’s findings ment on Issue Congress fit stat injuries. The has seen t No. The as follows 9. issue was submitted supplant common-law ute to NO. 9 “SPECIAL ISSUE employees drastic the more railroads to “In-whole-or-in-part” causation duty of the you preponderance “Do find a concept. Congress has not seen But per- of the evidence that such act in change the by statutory enactment fit chatt, rocks, mitting gravel, either concept proximate cause common-law dirt, in mounds or remain debris to contributory negligence with reference to area where Plaintiff employee. And in the absence caboose, you alighted from said statutory common-law such enactment preceding in answer so found R. Co. v. prevail. Texas N. rule must & O. issue, negligence, defined was Commission, Tex.Civ.App., 220 Railroad ? herein Inc., Weingarten, 273; v. Smith S.W.2d J. 878, 880; City of “Answer Tex.Civ.App., Yes or No.” 120 S.W.2d Coffin, Tex.Civ.App., 35 Corpus Christi v. an- jury was “Yes”. In The answer of the Anderson, Tex. 202; 119 v. State S.W.2d ap- swering 10 found that 233; 15 69 A.L.R. S.W.2d C.J.S. pellee’s injuries in or in resulted whole 12a, p. Law 619. Common § negligence. from said prevails The common law Tex 2 the Special Issue No. answering In with the Constitution as unless inconsistent had found that failed States, or laws the state the United and furnish common Art. Vernon’s The Ann.Civ.St. which work. prevails with rela law reference causal Special Issue Appellant (1) tionship contributory It contends negligence. is (2) and No. 9 is multifarious long rule that the Federal established to the issue is law of state answer the common courts enforce when arises L tried answer cause and in which a. chatt, gravel, negligent permitting first above contentions was rocks, dirt, remain question, vexing of or debris to

raises the often whether mounds appellee alighted it the area where an issue as framed is defective because safe-place-to-work find- caboose. Since the more than one ultimate issue. submits all-encompassing it not defec have concluded that the issue is exhaustive finding in re- been held cannot be reconciled with the regard. has often tive It chatt, case gard gravel, it The Arnold multifarious because that an issue is not etc. subsidiary really authority holding an- evidentiary groups several long swers here are in conflict. together, so it involves facts Mathews, Tex. Duff v. one ultimate issue. of its view that is no there Scott, 679; Civ.App., v. Jones Spe- conflict between the answers to 534; Gray Tex.Civ.App., 266 Coun S.W.2d cial Issues Nos. seeks to Oldham, Tex.Civ.App., 238 ty v. Co. Gas negative invoke the rule that a answer to 596; Howell, Tex. Howell v. S.W.2d negative issue submitted in a Co. Service Mutual Ins. is not the same as an- form an affirmative Territo, al, Tex.Civ.App., 147 Texas et v. negligence. merely swer of It means Really only issue one ultimate S.W.2d 846. party having proof the burden of did not inquired Issue No. 9: was about in establish the condition. non-existence of the negligent permit whether Leschber, Tex.Civ.App., Hill ting foreign substances to remain Grubbs, Utilities Gulf States question. area in Tex.Civ.App., Tex. 41-B Jur. appellant’s con to the second As give Point 5 we must tentions under its As the rule relied we view the situation findings The

an affirmative answer. by appellee applicable In on is not here. response 2 and 9 in Issues Nos. answering Special 2 “No” the conflict. appellee effect had ap- discharged showing that burden of his In Arnold v. Panhandle & S. F. pellant appellee an unsafe had furnished 353 U.S. 77 S.Ct. Spe- place answering in which to work. In jury acquitted eight the railroad on jury in effect cial Issue No. 9 “Yes” the specific negligence, acts of but found that appellee discharged bur- found that had the railroad had not furnished Arnold a showing furnished den of had place in which In safe to work. appellee place in to work. an unsafe holding that the answers were not con- We think Both answers cannot be correct. flict United Doherty, 143 quoted in Pearson v. the test specific findings States reasoned that ap- (Syl. 2) is Tex. 183 S.W.2d were not exhaustive or all-inclusive findings are plicable two con- here. The might negli- acts which have constituted appellant’s Point No. 5. We sustain flict. gence, unsafe-place-to-work while the find- all-encompassing. was exhaustive and points appellant and seventh its sixth words, unsafe-place-to-work In other Special Is- complains the submission negligence may have resulted from an act grounds. various Nos. 8 and 9 on sues specific among not named or included jury’s answer held have Since we acts submitted. pass we shall No. cannot stand to Issue pre- re-

The reverse the above situation is two question whether these upon the technically sented here. In this answered defective case the lated issues were inquiry they “No” railroad submitted. whether the were form which had failed to furnish appellant as- work, point fifteenth place pre- In its from a then found , in over- in error ponderance court was that the of the evidence that railroad serts ruling appellant’s judgment motion for not “A. I Got on what knew off to be withstanding jury. place footing. verdict cleanest properly court could the mo sustained “Q. right, And it is clean out sir. All tion if there was evidence to sustain- there, isn’t it? King’s Estate, In re verdict. No, place. sir, “A. The cleanest it’s 660; Calvert, Tex. “‘No not clean.” Evidence’ ‘Insufficient Evidence’ Points Error,” 38 Texas Law Review 361. testimony ample There other wit- place alight- nesses Appellee alighting that in testified including ed was not of debris clear various stepped object he on an caboose substances. big your “felt like it 'as was about as two say bigger.” appellee’s fists Even if we were to signed or He earlier testimony question own (which conflicting he statement he said did not know place out) alight, such conflict his wife had made which statement would something Refining he raise fact issue. made no mention of a rock Overton Harmon, (Rev. your on other “about as as two fists.” big grounds, 457); 130 Tex. Appellee “purpose also testified that his Guaranty McCollum, Fidelity U. S. & Co. v. in getting on that side of off the train was Tex.Civ.App., Hatley v. place place proper get a safe and a off Hatcher, Tex.Civ.App., 376 S.W.2d get at.” He further testified “I selected Ap- 41-B Tex.Jur.2d Tex.Jur. there, get off because it the safe pellant’s point fifteenth is overruled. by appel- off.” These last two statements appellant alleges In its er- Point No. 19 ap- lee if taken out of their context would permitting appellee ror of the court pear appellee’s to be conflict with state- at the he show of conditions notice stepped object big ment that he on an alighted by complaints means of as to the appellee’s testimony both fists. But when yard railroad as well as tak- generally is considered in connection its con- ing of a strike vote with reference to the testimony text and in connection with his yard. whole railroad testimony as a whole and with the of other witnesses, apparent conflict can be rec- concerning Evidence above being onciled. It was while was objected ground matters to on the was first neg- cross-examined as to whether he was inquiry questions did limit the ligent alighting moving between two and time involved. This ob area he trains that he said that had selected “a jection was sustained. Later ob proper get safe and off at.” We jected questions limited on the more quote testimony: further from his ground questions “irrelevant that the were got “Mr. Freels: You off out there predicate” immaterial,” proper and “no and against guarding moving without “prejudice”. later itself Still equipment adjacent track, on an brought questioned out evidence on cross you did ?not circumstances no examination. Under the reversible Medina Electric error is shown. No,

“A. sir. Tex.Civ.App., Coop., Ball, Inc. v. 368 S.W. “Q. say you did not? 227; Delhi-Taylor Corp., You 2d Oil Bales v. Tex.Civ.App., Hooten v. guarding myself. got “A. I off Dunbar, Tex.Civ.App., “Q. right, got County Tex. Tyler All sir. You with- Withers v. Lumber off State, yourself Civ.App., guarding against un- Marsh v. out footing, you Tex.Civ.App., Appellant’s 1$ safe did not? t what.you saying Boinf No. are here? 19 is overruled. application. Thompson appel have no v. Rob- can Nos. 20 and In its Points bins, supra. (20) there position that talses the lant support the submission

no evidence an- jury’s the conflict in the Because of in (21) and there was Special Issue No. 8 Nos. 2 and 9 the swers to Issues support the submission evidence to sufficient trial be reversed judgment of the court will further going into Without of the issue. trial. the cause remanded for and another evidence, cannot we regard detail support evidence say there was no remanded. Reversed and And the “no the issue. of the submission weighing applicable in rule is evidence” FOR MOTION REHEARING ON points. these appellee 'vig- rehearing In his motion for original holding in orously our assails appellant says In its Point No. jury’s answers to Special Issue answer of the in irreconcilable Issues Nos. and great weight and against the 8 is so No. .2 conflict, necessitating a reversal to be man preponderance of the evidence as judgment. court’s ifestly wrong. see merit ample evidence to point. There was Special Issue No. 'answer answer, of which evidence some ac- thereto and the instructions to 22 is pointed out. Point No. over we companying the submission of the' is- ruled. sue were as follows: submitted Is The court you preponderance, find “Do from a 67 as follows: sue No. of the evidence that on the occasion question defendant failed to furnish cent, any, per you if find “What do plaintiff a preponderance of the evidence from a which to work? negligence, any, if does plaintiff negligence, bear to the entire ‘yes’ ‘no’. “Answer any, plaintiff de- both “ANSWER: fendant ?” accompanied an instruc- This issue was that defendant was “You are instructed be answered tion that the issue was to ordinary duty to exercise care under a found that contribu- in the event plaintiff furnish prox- plaintiff tory negligence on the work, place and this which to injuries imately caused own continuing though even was a one defendant result- may infre- fleeting have been or work inju- part or in in defendant’s ed in whole quent. properly think the issue was sub- ries. We Robbins, Thompson 157 Tex. “You are further instructed mitted. Notwith- 116-117. ordinary S.W.2d to fur- duty to exercise care jury standing the instruction the answered place nish a safe to work does not have doing In so the Plaintiff.”

the issue physical only condition reference to the “75% contrary the instruc- jury plainly went place but has refer- of the itself also contributory negli- tion, for none acts, any, you negligent ence to in the affirma- gence issues was answered employees on the oc- find of defendant’s Special Therefore, Is- the answer to tive. question. casion In the significance. can have no sue No. 67 neg- instructed that this contributory “You are further any finding absence of of duty im- becomes more comparative- negligence doc- is a ligence the perative increases.” trine, damages rule as the risk or the diminution of-the No, quoted Special finding, however, in full in Issue ative it 'ap- does 'not opinion, repeat- pear original our so need be there would be irreconcilable con- no.t ed here. flict between the two issues. From the standpoint jury, from all the tes- Appellee jury’s answers insists that timony case, and evidence in this there issues are consistent each two with explanation is a reasonable the an- .of other and are not at all conflict. inquiry swers the two issues. present appellee’s briefly shall contentions respect furnishing reasonably with a support of view. place in safe which to work .could upon been answered based . APPELLEE’S CONTENTIONS testimony and covering evidence (1) According appellee an- Ray condition of entire Yard in Special swer of “No” to Issue No. can Denison, an area of a considerable in no wise construed as an affirmative inquiry number of acres. The was not.'. appellant provided appellee finding that localized area of ‘the place in which to work. however, alighted’; where Plaintiff merely by-the jury finding The answer is respect Special Issue No. discharge did not his burden inquiry was localized to ‘in the of area issue; proof (cid:127)of under that that the issue as hump’, Special in- Issue No. 9 “negative drawn submission” which quired only area, about that which is pre- inquires finds from a whether the Ray a small fractional ponderance evidence Yard; re- had evidence with “failed” “did not” do a certain act spect to the generally Yard and had submission, opposed to an “affirmative” respect specific evidence with meaning inquiry jury finds ” whether the hump.’ area of ‘the did a certain act. means that den of of a sion On the appellant. specific proof other act of under the affirmative submis Issue No. 9. hand the This 9 is negligence did an affirmative finding discharge In necessarily answer to the face his bur finding make an area an unsafe has been that a committed a one ^[*] “It negligent provided, yet ^[*] entirely act does not negligent ^[*] harmonious to state ^[*] act. automatically employer ^[*] to work.” Certainly to work ^[*] ap finding of this affirmative (3) Appellee also reminds us a rule pellant escape liability cannot its because the which has announced in been several Texas pre found that the did not evidence specific cases to the effect that a will ponderate negative under the submission prevail attempt- general finding over a seeming reconcile argument appellee cites us to Halliburton answers. Ft. & Denver Co. v. Worth Groves, Cementing Oil Well Co. v. Tex.Civ. Britton, 654, 657; Tex.Civ.App., 310 S.W.2d App., Hill Lesch Beaumont, Tex.Civ.App., City Harbin v. ber, Tex.Civ.App., 235 S.W.2d Gulf Hughes, Bragg et al. v. Grubbs, Tex.Civ.App., States Utilities v.Co. Tex.Civ.App., 53 41-B Tex.Jur. Appellee says (4) that “this Court can- (2)In support further of his contention procedure guise state de- not under the of that the in two are not conflict but answers rights granted feat substantive are consistent with each other Employers Lia- Congress under the Federal argument: makes this bility on the argument Act.” This is based Special “Even if the the answer to Court of Issue statement the No. regarded & were to affirm- in Arnold Panhandle be as an United States States, quoted by ap- Ry. Co., S.Ct. (cid:127)United cited U.S. Santa Fe “ * * * case, recog- pellee Arnold refuses to follows, the in the plainly procedural passing in on rights, when nize rules of Federal state assertion made, rights be under Federal laws. See is not to defeated substantive practice.” local also 79 A.L.R.2d 574. the name of in ef- (b) The Arnold case itself holds ON REHEARING OPINION specific finding negligence fect of that a agree find unable to with ourselves finding prevail against general a will not appellee. the place of an work because unsafe its is in finding latter more exhaustive Appellee’s arguments the (1) overlook posi- scope. us the In the case now before very important the instruction to in answer tion reversed. The guidance, answering Special Issue No. its scope Special Issue No. 2 is broader its emphasis repeat that instruction: 2. For we “ No. 9. than the answer ** * ordinary duty to exercise Spe- jury’s The substance of the answer to place to care to a furnish considered in the cial Issue No. when only to the work does not reference it, light accompanying of the instruction place itself, but al physical condition of preponder- did not find from acts, negligent to the so has reference -any ance the evidence that there was of employees on any, you find of defendanfs appellant re- negligence of with question.’ ours.) (Emphasis occasion in spect place find- work. Such to a safe light In the instruction the above court, majority ing, in of of a the view Spe- effect of the answer of “No” answer to collides with jury did cial Issue No. 2 was specifical- finds Issue No. where preponderance find the evidence from ly preponderance evidence from appellant guilty any been act of negligence an act that there was regard with to a safe appellant; permitting chatt, etc. to answering Special Yet in Issue No. work. remain in the area. preponderance holding of Su- (4)We bow to the guilty the evidence that had been chatt, negligence: permitting of an act of ef- preme United States etc. to remain the area of the rights fect that the assertion of Federal appellee alighted caboose. of lo- defeated under the name is not to be seem to to be irrec- two answers us practice. not consider that But do cal we oncilable conflict. question be- here, for the applicable rule rights the substantive fore us involves ap- (2) also of We are negli- parties issue of ultimate argument pellee’s Paragraph (2) of his —the wholly Supplemental untenable Mo- contentions becomes when gence. Appellee in connection the court’s considered with “Appellee agrees Rehearing says, tion for very plain with instruction connection to work 2 as submission of above falls He then ultimate one.” issue is an quoted. Special Issue theory since back on his in af- submitted or answered No. was not holdings (3) We are aware form, there cannot by appellee of his firmative cases cited argument (3). But we do con- in the jury’s answers. holdings here applicable sider those Appellee’s rehearing is over- motion for

these reasons: ruled. proce- holdings state (a) The refer to a of dural The the rule. Overruled. WILLIAMS, (dissent- reply jury CLAUDE which to work. the said Justice

ing rehearing). by on “No”. jury What did the mean ? I can conceive of no other mean- answer study After careful reconsideration and merely finding than that the answer is a myself agree unable to I find of the record jury discharge the did not the ultimate brethren on my with esteemed proof his burden It must of as to that issue. appeal. I am in com- disposition of this submitted, issue, be observed that the as opinion it plete majority as with the accord “negative amounted to a submission” presented the ex- with points relates to all opposed an to “affirmative submission” relating the ception point to of error Special Issue No. The answer “No” Is- alleged irreconcilable conflict between merely jury to such issue means that the to I am unable sues Nos. 2 and 9. Since prepon- found that the evidence did not respect- I agree that a fatal conflict exists finding derate favor of a failure to of my fully record dissent. provide reasonably a safe to work. that this case majority The has concluded However, plaintiff the mere fact the solely because of an al- should be reversed proof failed to sustain burden on this his between leged- irreconcilable conflict reasonably issue alone cannot to be said to Special jury answer to Issue No. equivalent finding be to an affirmative Special jury to Issue and the answer of company provide appellee railroad did issues, together with the in- (cid:127)No. 9. -These on to work been following .struction Issue No. have question, occasion or that its serv- n copied opinion and original verbatim any particular ants were negligent primary rehearing. The on act or omission. therefore, .question, conflict in is whether a assigned by answers -fact exists between the ap- a situation where Thus we have questions to submitted jury to two (cid:127).the burden of pellee sustain his has failed to them. in a verdict exists .A general his is proof, finding and secure special issues if the answers to or more two provide place to sue a safe failure issues, and cannot both be true. When both but, Special work thereto, subjected answers burden of successfully his has maintained (cid:127)¿'careful exegesis I am convinced that specific negligence which proof to establish there is- no actual conflict at all. injuries. I bring about his contributed presents problem. It Issue .No. conclude that the answer an submission of the -to amounts affirmative finding of affirmative Issue is not an No. -question the act on the whether fact, duty, noth but is or omission -chatt, -permitting gravel, -railroad jury that ing more than a statement -rust,.-mounds dirt, debris to -remain .of by appellee was not presented the evidence plaintiff alight- are^ preponderate in fa the evidence sufficient negligence. ed the. train To this issue. finding sought The vor of question 'jury gave affirmative an- an proof mere failure to his burden swer; plaintiff therefore fulfilled law, not, as a matter on this issue does obligation discharge the burden of secur- ap against amount a converse ing the answer of “Yes” to this essen- Oil pellee. 41-B Halliburton Tex.Jur. recovery. tial-element of Groves, Cementing Tex.Civ. Well 919, 938; App., and the Hill v. Lesch As to thereto, entirely ber, Tex.Civ.App., differ- Gulf we answer s Grubbs, By Tex.Civ. ent this .issue the trial court State Utilities Co. v. situation. App., Accordingly, both they asked whether preponderance is the evidence that on the answers of the two yet question may true and occasion in defendant to fur- involved be well sues failed place in plaintiff nish conflict

853 assume, Special though arguen- Even we should swers to these issues. Issue No. 2 do, jury Special issue, general Special answer of the was a whereas specific specific 2 an affirmative No. 9 was negli Issue No. amounted to issue of by appellant, gence. specific as finding, as and contended majority pre in their on answer to 9 should is, rehearing, my judgment, possible vail general finding there a com- over pelling why ir- reason there is contained in 2 no fatal Issue No. when we attempt reconcilable conflict alleged between that answer to reconcile an Ry. and the answer of the Is- answers. Ft. Worth & Denver Britton, 654, By Tex.Civ.App., sue v. No. 9. both state and federal law 310 S.W.2d 657; enjoined performance City Beaumont, we are Harbin v. 146 S.W. duty 297; Bragg to construe ir- 2d being Hughes, verdicts as not et al. v. Tex.Civ. reconcilably conflicting any App., when there is Panhandle & Santa explanation Ry. Arnold, seeming reasonable Fe Tex.Civ.App., conflicts. Co. v. 283 always 303, honesty reversed, 360, Courts should assume 353 U.S. 77 S.Ct. ordinary 840, and intelligence at least 1 of a L.Ed.2d 889. they and spe- never intend that their my opinion In majority applied has findings cific of fact destroyed should be and harsh .upon strained construction general finding in seeming conflict there- alleged conflicting verdict Tex.Jur., with. 41-B 580, p. Sec. this case. I believe that imposes up- the law Bragg Hughes, et al. v. Tex.Civ.App., 53 us, court, reviewing as a duty of an- Carpenter, Ford v. Tex. alyzing jury’s in the most fa- verdict 447, 558, light vorable resolving any possible con- Co., In & Gallick v. Baltimore Ohio RR. flict so that may stand, the verdict rather 618, 372 U.S. 83 S.Ct. 9 L.Ed.2d my than fall. judgment humble this ver- Supreme

the United States Court said: presents dict one that easily can be recon- ciled, and reconciled, should be in the in- it “But is the of the courts to justice. terest of attempt answers, if to harmonize the possible it is reading under a fair Finally, I think that we must bear in them: ‘Where there is a of the' view mind that we dealing are here with a Fed jury’s case that makes answers to statute, eral remedial the Federal Em consistent, they interrogatories ployers’ Liability Supreme- Act. The Court way.’ must be resolved that Atlantic repeatedly the United States has held Stevedores, Inc., & Gulf Ellerman v. this Federal remedial statute is lib Lines, Ltd., 355, 364, 369 U.S. 82 S.Ct. - erally injured construed- in favor of an 780, 786, 7 L.Ed.2d We therefore Supreme workman. As stated attempt must reconcile of the United States in Arnold v. Pan findings, by necessary, exegesis Co., handle & Santa Fe 353 U.S. Co., in Arnold v. Panhandle & F.S. R. “* * * L.Ed.2d 889; 77 S.Ct 353 U.S. S.Ct. rights, plainly assertion of Federal when 889; McVey Phillips Co., Petroleum reasonably made, to be defeated (C.A. Cir.); 5th F.2d Morris practice.” name of local Pennsylvania R. 187 F.2d 837 Wechsler, 22, 24, * * * In Davis v. 263 U.S. (C.A.2d Cir.) before arewe 13, 14, S.Ct. L.Ed. disregard jury’s special free to ver- Court of the United States said: dict and remand the case for a new trial.” may springes the State “Whatever Applying endeavoring these well established rules to set for those who are us, confers, rights before record it is evident that we assert that the State can, must, rights, plain- as we reconcile the an- assertion of Federal when reasonably, made, is not to be

ly and prac- of local under the name

defeated

tice.” question .that majority contends rights of us involves the substantive

before rights. procedural I parties rather than agree. I that the same sub-

cannot believe rights procedural question of state

stantial here as involved Arnold. involved his bur- this case Shelton has sustained

In.

den establish an affirmative railroad com- in- contributed to cause his

pany which jury said he should be

juries for which the

compensated. The mere Shelton fact evidence, in

failed to introduce sufficient jury, preponderate general allegation of his

favor failure not, work,

provide a safe does

my judgment, right to recover defeat this Federal statute. rehearing

I sustain the motion for would judgment the trial

and affirm the court. ux., Appellants,

Don H. WALTON et AMERICAN LIFE INSUR-

GENERAL COMPANY, Appellee. ANCE

No. 14286. Appeals of Civil of Texas.

San Antonio.

Oct.

Rehearing Nov. Denied

Case Details

Case Name: Missouri-Kansas-Texas RR. Co. v. Shelton

Court Name: Court of Appeals of Texas

Date Published: May 15, 1964

Citation: 383 S.W.2d 842

Docket Number: 16343

Court Abbreviation: Tex. App.