139 S.W. 44 | Tex. App. | 1911
Lead Opinion
The negligence alleged was a failure to blow the whistle and ring the bell upon the approach of the train upon entering the station, the negligence of the agent in giving incorrect information as to the time of its arrival and negligence on the part of those operating the train in causing the lurch above referred to. The court by its charge excluded all issues of negligence save that of the alleged negligence of the station agent and of the engineer, and, after giving appropriate instructions relating to negligence, contributory negligence, and proximate cause, thus submitted these two issues:
"(7) Now, if you find and believe from the evidence in this case that plaintiff, on or about the 5th day of April, 1909, applied to defendant's ticket agent at Glazier, Tex., for the purpose of purchasing a ticket over defendant's line of railway from Glazier, Tex., to Roswell, N.M., and you further believe that plaintiff did purchase said ticket from defendant's said agent at Glazier with the intention of taking passage on defendant's regular passenger train from Glazier to Roswell, and if you further believe that after plaintiff had purchased said ticket, as above stated, if you find he did, that he applied to defendant's said ticket agent to know when *46 said defendant's train en route to Roswell, N.M., would arrive at Glazier, and if you further believe that defendant's said agent at Glazier gave plaintiff information that was incorrect, and you further find that said act of defendant's said agent in giving plaintiff information that was incorrect, if you find he did so, was negligence, as the term is used herein, and that such negligence, if any, was the proximate cause of plaintiff's injury, and that plaintiff was not guilty of contributory negligence, then you will find for the plaintiff.
"(8) You are further instructed that if you find and believe from the evidence in this case that on the occasion in question, and after plaintiff had purchased a ticket over defendant's line of railroad from Glazier, Tex., to Roswell, N.M., that the plaintiff left defendant's depot and went to a restaurant in said town of Glazier for the purpose of getting breakfast, and that while he was away from said depot, and before plaintiff had returned, the defendant's train carrying passengers en route from Glazier, Tex., to Roswell, N.M., arrived at Glazier, and when discovered by plaintiff was in the act of leaving said station, and you further find from the evidence that plaintiff ran to said train for the purpose of boarding same, and that while so running for the purpose of boarding said train defendant's engineer in charge of said train saw plaintiff approaching said train, and that said engineer from the movements and actions of plaintiff at said time knew that plaintiff was approaching said train for the purpose of taking passage thereon, and you further find and believe from the evidence that plaintiff did approach said train and attempt to board the same while in motion, and while in the act of boarding said train defendant's engineer caused said train to move forward very rapidly and with a lurch, and that plaintiff was thrown to the ground, and that such acts, if any, on the part of said engineer, was negligence, as hereinbefore defined, and that by reason of such negilgence, if any, plaintiff sustained injuries, and that such injuries were the direct and proximate result of such negligence, if any, and that the plaintiff himself was not guilty of contributory negligence, then in that event you will find for the plaintiff and assess his damages as hereinafter charged you."
There were other charges given, including an appropriate charge upon contributory negligence; but, in the view we have taken of the case, it is unnecessary to notice them.
We all conclude that the court erred in giving the eighth clause of his charge. It is undisputed that the train in question was a very heavy one and behind time and going downgrade, that the engine pulling the same was one of those large locomotives described by the witnesses as designed to quickly gather speed and get away from stations, and there is no evidence whatever that any operator of the train knew of appellee's approach thereto, except the evidence already referred to indicating that possibly the engineer saw appellee and the other boys approaching the train when some 75 yards distant. It is not pretended that either the engineer or other operative of the train saw appellee just before his attempt to board it or invited him to make the attempt, and, if it be conceded that the engineer saw the appellee and the others approaching the train under the circumstances testified to by them, it by no means establishes the fact that the engineer knew, or was bound to know in the exercise of ordinary care, that appellee and the others would, at the time and place and with the speed of the train as it undoubtedly was, make the actual effort to get thereon. If he saw them, he might well have anticipated that appellee and others desired to take passage upon the train; but the evidence shows that the train had stopped at the station the usual time, and no duty rested upon the engineer to stop his train in the prairie to enable a person to take passage. Nor does the evidence show the cause of the sudden movement or lurch of the train of which appellee complains. No witness testified that at that moment, or that at any time after the engineer saw appellee, if he did so, he opened the throttle of the locomotive or did any act not theretofore done which caused an increase of the train's speed, and it cannot be maintained that the mere happening of the "lurch" proves negligence on the part of the engineer, so that we are left to mere conjecture on this point. Moreover, we think the evidence was wholly insufficient to authorize the submission of the issue of negligence in this respect, inasmuch as before stated the evidence so wholly fails to show that the engineer at the time actually knew, or in the exercise of ordinary care ought to have known, that appellee was attempting to get upon the train, for no man is required to assume that another will undertake to do a dangerous thing. A somewhat similar case we think may here be referred to with profit, viz., that of the St. L. S.W. Ry. Co. of Texas v. Highnote,
The majority are of the further opinion that the evidence did not warrant the submission of the alleged negligence of the agent as a proximate cause of appellee's injury, as was done in the seventh clause of the court's charge. In aid of our view on this subject, we desire to here add a few particulars to what we have already said. Appellee testified that at the time of his inquiry he "asked the agent if we had time to get our breakfast." If the agent made any reply other than that the train was "2 minutes out of Higgins and would get there in 31 minutes by schedule time," appellee did not state it. Appellee further testified that: "After the agent gave us that information, I went up to a lunch counter to get some lunch. There were three of the ball team and the proprietor of the lunch counter went up there. * * *" That "it is about 250 yards from the depot to the restaurant," and they "hurried along in a walk. * * * That after we got there the restaurant man had to light up the restaurant, light a fire, cook our breakfast." On cross-examination he said it was an egg lunch cooked on a gas stove and took but a few Minutes. Other testimony shows that the train was more than an hour late, and that, in the language of the appellee, "it might have been 25 minutes or it might have been 45 minutes" after appellee's arrival at the depot before making the inquiry of the agent, and appellee's witness Hank Eubank, whom no one contradicts, testified to the effect that it was after the conversation with the agent that the conclusion to get the lunch was formed. He says, "after that conversation we all went on the outside to talk over the matter of getting breakfast, and some of the boys decided they would go up and get something to eat."
Appellant insists that there is no evidence which shows that the information given appellee as to the time when the train would arrive was incorrect, and there is none, and none to show a want of care on the part of the agent in the ascertainment of the information, except as may be inferred from the fact, according to appellee's testimony, that the train actually arrived in Glazier within 15 minutes instead of 31 minutes, as indicated by the agent's answer. In Mo. Pacific Railway v. Foreman,
It is well settled that, in order to recover damages for an injury because of negligence, the burden is upon plaintiff to show that the negligence charged was the proximate cause of the injuries for which recovery is sought; but it is not always easy to determine just when this is the case, and it may be profitable to review some of the authorities on the subject. The leading case of T. P. Ry. Co. v. Bigham,
In the case of Seale v. G. C. S. F. Ry. Co.,
In I. G. N. Ry. Co. v. Reiden,
Other cases might be cited; but those named will be sufficient, we think, and have been mentioned without effort to be literally accurate for the purpose of illustrating the rule that is well established in this state that, in order to warrant a finding that negligence or an act not amounting to a wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. In view of this rule and of the authorities cited, the majority have been unable to avoid the conviction that the negligence of the agent, if any, in misdirecting appellee as to the time of the train's arrival, was not the proximate cause of his injuries. There was evidence tending to show that the agent knew that appellee's inquiry was prompted by the desire to go and get his breakfast, and the agent could very reasonably have anticipated that, as a result of a misdirection as to the train's time, appellee would leave the station for such distance and length of time as to cause him to lose his trip, and for this appellee undoubtedly would be entitled to recover damages *49 for loss of time, extra car fare, and any other expense occasioned thereby; but can it be said that the agent, and hence the company, could have reasonably contemplated that appellee would later actually determine to leave the station grounds and go some 750 feet, have a breakfast cooked and eaten, and thereafter suddenly approach and attempt to board a rapidly moving train not at the station, but some 300 or 400 feet therefrom? We think not.
There is nothing in the record to show that the place to which appellee and others resorted for lunch was the nearest or most available one of the kind, or that the agent had actual knowledge of the fact of appellee's conclusion or journey. Under such circumstances, was it the duty of the agent, and hence of appellant, to delay the belated train beyond the usual time, and thus inconvenience many others, because of a mere possibility that appellee may have acted upon the information given as to the time of the train's expected arrival? If not, no inference of negligence can be drawn from the failure to delay the train at the depot longer than was done in order that appellee might take passage, for where there is no duty no negligence can arise. I. G. N. Ry. v. Vallejo,
There are numerous other errors assigned; but they are of minor importance, and for various reasons we think reversible error was not presented thereby. We do not wish, however, to be understood as holding that upon proper presentation none of the questions are without merit.
We conclude that the evidence on the issue submitted does not support the verdict and judgment, and that, as unfortunate and disastrous as the accident was, the law, which is the safeguard of all, will not permit the imposition of the burden by way of damages upon the one remotely in fault, if at all, and give compensation for results of hazards and chances knowingly assumed.
The judgment is, accordingly, reversed, and the cause remanded.
Dissenting Opinion
The verdict of the jury establishes the fact that appellee was not guilty of contributory negligence in his attempt to board appellant's moving train, and that his injuries were received as a proximate result of appellant's negligence in furnishing him incorrect information as to the time of the arrival of his train. The majority hold that the evidence did not warrant the submission of this last issue, for the reason that the negligence of appellant's agent in this respect could not have been the proximate cause of appellee's injuries. To this I do not agree. In the beginning one should treat the question as though appellee when injured was in the exercise of ordinary care for his own safety (for the jury have so found, as to which no complaint has been sustained), and the sole question then is, in the present state of the case, Can it be said as a matter of law that the negligence of appellant's agent in misdirecting appellee as to the time of the arrival of his train is not the proximate cause of his injuries? Ordinarily, the question of proximate cause is one of fact, and it is only in those cases where reasonable minds cannot differ upon the question that it becomes one of law, which the court may withdraw from the jury. It would serve no useful purpose to cite decisions or quote authorities merely announcing the principles which underlie the conception embodied in the phrase "proximate cause." The rule is too well established to admit of controversy, and I readily concur in the announced conclusion of the majority, backed up as it is by all of the decisions that have ever discussed that question, that an act is the proximate cause of an injury when such injury was the natural and probable consequence of the act and one which ought to have been foreseen in the light of attending circumstances. The difficulty is not in stating the rule, but in applying it to the facts of the given case. The decisions cited by the majority were made upon a state of facts so dissimilar from the one at bar as to be of little or no value as a guide in determining the question before us. There are some decisions of the courts of this state which I believe will prove more helpful in determining the question, since they are more nearly like the facts of this case. In Mills v. M., K T. Ry. Co., *50
But, independently of the decisions which at best are on a state of facts not identical with the one under consideration, let us apply the test, which is supposed to determine all cases, of whether or not appellee's injury under the circumstances was one that ought reasonably to have been foreseen by appellant. It is undisputed that appellant's agent sold appellee a ticket for passage on that particular train, and therefore knew that he desired to board it at that time and place. It was also proved, and the verdict so affirms, that appellee made known to appellant's agent his desire to go to a restaurant for breakfast, and inquired how long before his train would arrive, and that the agent misinformed him. It is also proved, and the verdict so finds, that appellee, in attempting to board the moving train as he did, was not guilty of contributory negligence, but acted as a person of ordinary prudence would. And the jury have also found as a fact that the negligence of appellant's agent in the respect mentioned was the proximate cause of appellee's injury. What, under the circumstances, ought the company to have anticipated as a result of starting its train at the time it did? Clearly, I think that appellee, who was known to have a ticket, who desired to take passage on that train, and who was temporarily at a restaurant for breakfast, relying on the assurance of the agent as to the time of the arrival of the train, would, on discovering that the train was leaving, make an effort to reach and board it, if a reasonably prudent person under the circumstances would do so. It was appellant's duty, after having given appellee the information it did, to hold its train for the time indicated in the information or until appellee had safely boarded it. As it was, it failed to allow him the promised opportunity to board the train, and thus hindered him in his efforts to take passage, and I do not think it can be said as a matter of law that to put its cars in motion and thus suddenly put him to the choice of being left or of attempting to get upon the moving train was not the proximate cause of injuries received by him in *51 attempting to board the train. I think it is a most reasonable probability, and one that a carrier even in the exercise of ordinary diligence ought to foresee, that a passenger for whom it had promised in effect to wait would hasten to exercise all ordinary care to board the train upon its being started. Upon the point of the company's knowing that appellee desired to board this particular train, this case is on a par with those cited by me because of the knowledge of the company through its servant, the ticket agent.
For these reasons I respectfully dissent.