*1
(cid:127)
validity
Although
indictment and its
for an
designed
substitute
statute was
pri-
juris- marily
to the court’s
persons
is therefore essential
the benefit of
who have
Sacks, 115 Ohio
diction. See
v.
no defense and who
pleas
Wells
desire
enter
219,
App.
If an
(1962).
guilty
provides made that such should be waiver In open by court or written instrument. case the waiver was entered
the instant carefully
open court had court after appellant of
advised the the nature of rights, in- charges his against him al., et COMPANY SOUTHERN PACIFIC right grand jury a indict- cluding the Appellants, appellant represented ment. The All this is reflect- counsel at the time. report- transcription ed of the court STANLEY, Appellee. a Velma Eloise remembered, It be how- er's notes. should No. 516. ever, notes of court that untranscribed Appeals Texas, Court of Civil reporter misplaced, or and such can be lost Corpus Christi. full legally destroyed after a notes can be 28, 1971. 2324, year. Ann.Civ.Stat. Article Vernon’s Oct. Opinion 4, Remittitur Nov. 1971. permitted by prevent procedure
To becoming 1.141, supra, from a fer- Article Rehearing Denied 1971. Nov. post-con- breeding ground for tile future applications, it corpus viction habeas practice waiv-
be better to have the written open
er court the accused executed counsel,24 has after the accused his rights by of his advised court.
The written should include an instrument
admission that has been ad- accused rights by his
vised of court. writ-
ten should include an admission instrument his the accused has been advised of charge;
rights, and the nature among
the instrument should be filed
papers sheet and cause. docket also the fact judgment should reflect ac- the name of waiver and precise
cused’s counsel at the time
waiver. form, space Wright,
24. set forth Fed. federal courts includes signature Prac. & Proc. 122 at for use in of witnesses. §
Anderson, Null, Smith & Joseph Kelly, P. Victoria, appellants.' Garrett, Kilgore, Kilgore, Cole & W. W. Victoria, for appellee. jury response special issues
OPINION contrary against were and were NYE, Chief Justice. preponderance of great weight the evidence to such extent intersectional an automobile-train This clearly wrong. findings were Eloise Velma case. primary found negligence issues Pacific the Southern brought against suit appeal in this and involved Company and Railroad follows: wrongful death on account of damages Stanley. Prior Ernest her husband you find “SPECIAL NO. 6—Do ISSUE an with trial, consolidated case was preponderance of the evidence court the same *4 pending other action (the engineer) R. failed that E. Weitzel defendants. Gentry the same Opal against speed on the train which reduce the husband, Gentry, the driver was Her per- operating James he when was at the time a hit the defend that was of the vehicle son ordinary prudence of in the exercise men, killed both collision ants’ train. of ordinary care have reduced would Stanley, hus deceased passenger the Ernest the said of train? Gentry. The plaintiff, and band of James or Answer ‘Yes’ ‘No’. Opal Gentry was companion involving case in and in this Court finally determined We, the ‘Yes’. Jury, answer not is Supreme and therefore the Court you Special If No. have answered Issue except extent to the appeal, part a of this event, then only 6 ‘Yes’ and in such they because are relevant the facts occurrence.1, 2 answer: of the same arose out you find 7—Do judgment, based SPECIAL ISSUE NO. The trial court entered verdict, preponderance a against the defendants evidence on the jury failure, any, a Stanley. proxi- if plaintiff On that such and in favor of the 24, question? in did, cause appeal mate of September this Court judgment and the trial court’s reverse Answer ‘Yes’ or ‘No’. the defend- judgment render favor of holding our We, This action was based on ants. ‘Yes’.” Jury, answer support the that there was no evidence to Supreme Court This and the Court primary negligence against found issues of (see prior opinions of this case four this it was the defendants.3 For reason through 4) 1 citations footnotes unnecessary re- to decide the railroad’s in this fairly all facts nearly covered error, including their maining points of us unnecessary for case. It is therefore points insufficiency of the evi- of factual extensively concerning to elaborate found, how- Supreme dence. Court portions of analyze facts do involved. We ever, primary of that there evidence general a in as brief and as evidence negligence proximate and cause of way point for possible, to out the basis engineer and therefore reversed this Court verdict. and remanded it to consideration us points not determined.4 heretofore requires the question The evidence its appellants Appeals of their first and second Court Civil the exercise points power weigh all they error contend are en- to consider and findings titled to a trial evidence the case and to set aside new because the Stanley, Gentry Company Company, 1. 3. v. Southern Southern Pacific v. Pacific (Tex.Civ.App. Corpus (Tex.Civ.App. Corpus 449 459 232 S.W.2d 527 S.W.2d - - 1969). 1970). Christi Christi Gentry Company, Company, 2. 4. Pacific Pacific v. Southern Southern (Tex.Sup.1971). (Tex.Sup.1970). 548 S.W.2d 466 S.W.2d engineer approxi- testified that at new and remand the cause
verdict crossing mately is so one hundred feet from the that the verdict trial we conclude going prepon “They cried out are contrary and fireman great weight to the ” us, immediately stop! put the manifestly to hit He be of the evidence as to derance emergency. He that when required all the brakes on said to consider unjust. We prove spoke up first to him tending to the fireman it meant probative force evidence expected and the alert and facts be on that he existence of the vital again if a collision disprove existence. be warned it looked like tending their might As warn- findings the existence occur. a result the first If ing placed he his hand on the brake valve facts all the evi (considering nothing but one great weight did until he was about dence) contrary so to the crossing. hundred feet from the Forman as to be preponderance and of the evidence he car clearly stated that did not realize the wrong unjust, Court should this error, stop when point points he first told sustain or reverse it, engineer. about but wanted trial. to alert the judgment, a new Oth order erwise, He stated he did not realize the emer- should overrule the Court Estate, gency emerged situation until points King’s In the car affirm. re brush, from the at which time he told the (1951), 150 Tex. S.W.2d 660 *5 engineer stop. to “No Evidence and Evidence Insufficient Calvert, Points Error” Robert W. previous opinion In our we decided that Tex.Law Review 359. duty part there no was on the of either jury acquitted The contribu- engine of the member take crew to tory negligence. There is no contention slowing prior action towards .the train to that negligence here the contributory the that time the train the went behind Gentry the driver imputed his to brush, longer and the car was no visible. passenger Stanley. prob- negligence The Supreme Court reversed Court the engineer lem here is whether under the Appeals, saying: Civil all the person circumstances acted aas “ ordinary prudence. * It not limited to what * * duty op- the arose the when engineer actually the and knew realized. should erators have the au- realized that encompasses It person a ordinary what ‘pursuing tomobile a course which prudence should know and realize. probably body will terminate serious ’ * * * injury. therefore do not We Weitzel, E. R. engineer, the testified that agree holding with the court of of the prior collision, to the time of the he was appeals in duty civil this no case that riding on the right hand seat of the en- emerged arose until the car from behind gine away from the approaching car. J. J. brush, at which time the crew knew Forman, fireman, was on the left hand collision a could not be avoided.” occupied seat nearest to the car plaintiff. engineer testified that when therefore reconsider all relevant We point he had reached a approximately one point that would to when evidence the time thousand feet crossing, from the Forman duty engineer arose. told him “there coming”. will be a car speed of the train was 30 40 miles to undisputed The evidence was hour. The blowing started signals flashing, were the train had the the horn on ringing the train and the bell right-of-way required and that the car was quarter a about of a mile the crossing. from stop. to It is crew engine true that the He testified that he to continued blow the auto- right had the to assume that horn as loud as he could until the collision. required stop. They mobile would were The bell was ringing still after the train stopped. anticipate negligent But to conduct. have cleared very of a third to a half second Court, speaking about Supreme Supreme said: crossing. The Court situation, said: proximate element “The cause-in-fact an au- or of a train driver “Even e., close; i. whether cause is he never- right-of-way, has tomobile if the brakes would have been averted ordinary care. exercise theless must adjusted applied the throttle had required to ordinarily he is not While crossing. 1,000 others, or feet from at after anticipate negligent conduct case, supra, in the Ford As was observed anticipates, or duty when he does arise a might delay few seconds a of even a person’s anticipate, that the other should There was the collision. have averted a dan- about bring conduct is about part of the that action on the having the The person gerous situation. 1,000 slowed engineer feet im- it with cannot' exercise right-of-way * * * testimony And there was the train. punity. reduction Dillard explores proposi- recognized serv- per text a hour few miles may that others person tion that assume re- application ice of the brakes. We It lawfully carefully. states testimony will act the reasonable gard this that, ‘Rightfully this is sound understood sufficient to inferences therefrom be ’ * * * excep- enough. jury.” But there raise the issue them is the facts tions. One of ‘where If this evidence shows that other specific a rea- case would show to engineer could have the train suf- slowed position sonable man in the actor’s ficiently, the vehicle would have cleared person disobey probably another will crossing. 2 Harper James, law this time.’ & *6 Law (1956) of Torts 942.” summarizing The in most Supreme Court and circumstances the The Highway Patrolman Hewitt stated opinion also of that: case was the that the past train 2,097 travelled feet the “ * ** crossing. there was evidence that The Patrolman that the some stated ordinary engineer the failed exercise exhibit that the showed skid marks of the to 1,000 car at that applied, indicated that care. He was warned feet the brakes were released, approaching crossing. then a car was the The before it reached the tracks. speed per speed He car to 65 miles estimated the was 60 of the car to be hour, gave it indication it per 50 60 and no that to miles hour that at and that speed reducing speed. was testi- it The fireman would take the car about 150 feet only, engineer stop fied that he warned the to after driver had hit the brakes. (The constituted a cars which hazard. photographs show, in this case that he told the version what fireman’s plaintiff’s had the in vehicle which the hus- engineer was what different from riding, band had gone been another 15 engineer said. The “We said: fireman feet, the automobile have would cleared agot up my car side coming pretty on fast the tracks and the collision would not it your all got.”) —Blow whistle has for By have simple occurred. mathematical engineer enough conscious computation reasonably possibility could have of a to his put concluded an going automobile 60 miles put hand it into on the brake. He did per hour per travels feet second. which, 88 At lap position under Dillard’s speed only nn it takes about sec- testimony, prepared train would have ond to Assuming travel 15 feet. that the application the brakes and could car was going speed half or less as the have or seconds. He did not saved jury might reasonably put conclude from the the service position the brake into evidence, it still only which, would testimony, have taken a Dillard’s would under mile or two all
have slowed the train ‘a brake valves on of the cars of the effect engineer himself con- train —the would have stretch hour.’ The been to lap position off on the the train out. Had ceded that he had eased used, brakes throttle and the air on the it would have shortened time it reduced 1,000 at feet it would have slowed would have taken for the brakes take to (by crossing.) train effect three or got the time it to four seconds. He was your the testi- then in opinion was entitled asked “What is the to believe practice mony the engineer of Dillard that it the custom a train operating circumstances, practice, under person and under these circumstances similar where the engineer attempted sitting to say fireman’s have seat would you avert an time by applying accident the brakes when are about 1000feet intersection, speed reducing coming the train.” ‘Youhave a car fast Company, this side.’?” The Southern Pacific witness: “I would (Comment begin stop.” S.W.2d 548 at 553. emphasis supplied.) The facts were undisputed engi- that the neer did not reduce the of the train throttle expert opinion his witness Dillard any or make other effort to the train slow industry testified as practice to what the until he was about 100 feet from inter- require sit- engineer do At speed section. the train was travel- uation similar was con- to that which ling, only it took the train 2 or 3 about by engineer fronted His answer Weitzel. seconds to travel that last 100 feet. was, “By try “To to avert an accident.”— applying changing his brakes and The engineer testified concerning the de- Q “By doing of the train”. what?” scending ascending grade of the tracks “By braking or off or some- throttling prior the crossing question: thing.” “Q you As you head out of Edna did
The testimony engineer’s was that the descending grade? lap, holding, brake valve had settings, four A You have more or grade less a level engineer service and emergency. The testi- you until get to the Lavaca River that in experience fied all years of his you then descending have a as an he did slow his train never grade, yes, sir. *7 pending to avert a He didn’t collision. call, recall ever he having had a close but Q you After cross the river bottom never had reduced of a train heading on south happens what to he a toward as coming because saw car it grade then of the tracks? asked the to He was an effort avoid it. grade A You still have a descending seeing a car question: “But other than there. You then have the and river reduced you the tracks have never on go- the river is wide. You are still to avoid your speed of train an effort ing bridge down. There is another “No, don’t believe I collision?” A sir. a there, bridge one is the and river in behind the guessing in out the people of, you another is a bridge made of an wheel automobile.” don’t have the on it. span overhead any The not use Weitzel did Q You have a second over bridge settings applied of the four brake he until something in the river bottom? emergency setting the train when Yes, sir. A crossing, about a hundred feet from the Q you as Toro expert and the collision Then head on to the El was imminent. took crossing (where witness Dillard testified that the brake place) happens then to put it would what “lap” position, had been into equalized grade all the ? pressure the air A you Then begin come hill up to out A That depends on whether or not you
of the river bottom. going upgrade, are downgrade or on level track. Q you get And as to the El Toro cross- ing grade Q what is the like? Let’s very assume the situation we had the date of the collision. grade A The less more or levels off Well, there. A might it prac- it slow down tically a to stop at one thousand Q you I believe this but testified to feet. just jury,- to it clear make to you approached El Toro cross- Q aTo stop? your ing was train still (nods A head affirmatively)” descending grade? presume
A I it be. To the best attempted qualify later witness to knowledge my say there I would this statement, but still stated train good a bit it on de- little would have slowed. scending grade.
Q your end train was The back Having (direct considered all bottom? still down the river circumstantial) prepon and evidence that against findings derates for and Yes, A sir.” special issues and number 6 foreman, Forman, con- testified giving effect to the reasonable inferences J. J. follows: slowing of train as cerning permitted was> to make for evidence, jury’s such we hold that the find * * * you the train “Q Let’s assume ings contrary not great weight are to the you day with 114 cars and had that Appel preponderance the evidence. pounds the eight released six or points are lants’ one two overruled. reflect, it my way *8 of the is The nature examination tion. Very little. discretion of to the sound addressed be thereon will not Its action trial court. any approximation you us Q give Can has there appears it that unless disturbed going it it slow much would how discretion. We been a clear abuse such an hour? thirty-seven miles all the voir carefully reviewed have the rul of and complained dire examination it you leave long depends on how A It not do con ings by the trial We court. six or air at leave that you If on. questions asked strue going it is pounds reduction ten opinion advance. It is our in commitment finally stop. trial court was of the the discretion Company Insurance not abused. Travelers for one it left we Q assume Let’s Beisel, (Tex.Civ.App.-Amarillo 515 S.W.2d v. 382 feet? thousand 60 Cartall, ; 4) plaintiff’s which to
196
Levermann v.
determine the
life ex-
(Tex.Civ.App.-San
pectancy
393
to
S.W.2d 931
and because
the award
An
1965).
$54,972.69
nio
the sum
damages
in
manifestly
is
excessive under the evidence
Appellants’ points
through
five
in the case. The uncontradicted evidence
eight complain of the submission
certain
shows that the deceased
Stanley
Ernest
had
special
One of the issues submitted
issues.
a life expectancy
years.
of 14.14
He was
jury inquired
to the
en
whether or not the
years
age
63
at the time of his death.
gineer
negligent
applica
was
in his brake
health,
He was in good
good
was a
husband
tion and another whether or
he was
not
provider
family.
for his
The testimo-
negligent
speed
in failing to reduce the
ny
Stanley
indicates that Mr.
would have
the train. The defendants contend that the
continued to
years
work for three additional
issues,
permitting
trial
court erred
the'
salary
$6,000.00
earning a
in excess of
per
general
specific.
one
and one
Such submis
year.
apparent
The evidence was further
plaintiff
sion allowed
“two bites at the same
upon
his retirement he
re-
would have
contend,
they
apple,”
citing: Barclay v.
per
ceived
month
retirement ben-
$350.00
Company,
C. C. Pitts Sand and
Gravel
plaintiff
testified that
efits.
Mr.
(Tex.Sup.1965).
S.W.2d 644
This case
Stanley intended
work after his
retire-
in point.
concerning
not
The issue
brakes ment and
permit-
that he would have been
con-'
was not a different shade of the issue
per year
ted to earn
and still draw
$1680.00
cerning
speed.
reduction
testimony
his full
From the
retirement.
ap
had
positions:
several brake
the service
in the record
that his
it is shown
continued
plication
stopping
for the standard
employment
years
for three
would have
train,
emergency position
and the
used as
given
Stanley
$18,000.00.
Mr.
at least
His
this,
implies.
the name
In addition to
he
years
retirement benefits for eleven
lap
had a
conditioned the
position which
produced
$46,000.00. Ad-
in excess of
stopping.
lap position
brakes for
had
plus per year
ditional
income of $1600.00
train,
slowing
effect of
used.
produced
would have
a total income far
reducing
of the train
$80,000.00.
excess of
accomplished by closing
could be
the throt
tle as
placing
well as
the brakes
proved
be
di
Damages need not
position
lap
without
the emer
resort
by circum
rectly. They may be shown
Actually
gency
proper
or service
use.
introduced
stances from other
use of the brakes is not before us on this
be
however
the record. The evidence must
appeal,
consideration of the
as that
issue
for
jury a basis
furnish the
sufficient
Supreme
became moot as a result of the
by the
damages
sustained
estimating
event,
not
ruling.
Court’s
In
we do
years
was 56
wrongful
Mrs.
death.
find that
improperly
the issues were
submit
ap
of trial which
age
time
specific
ted
global
as a
issue. This
death of
years
three
after the
proximately
the same
double submission of
she had
her
testified
husband. She
issue or shades of the same issue. Dallas
thirty-four
to her husband
married
Railway
Clayton,
Terminal Co. v.
&
seventeen
years. They
lived
almost
had
(Tex.Civ.App.
S.W.2d 422
- Dallas
years
Edna,
testified that
Texas. She
;e.)
Heard, Inc.,
n. r.
Connor Heard &
by Mobil
employed
her husband had been
(Tex.Civ.App.-San
to
S.W.2d
An
of his
the time
twenty years at
for over
e.). Appellants’ points
nio
n. r.
*9
entirely
that she was
death.
stated
She
overruled.
support;
for
dependent upon her husband
home,
nine,
automo
Appellants
their
points
purchased
contend
ten
that he
their
home,
and eleven that
the
lawn
kept up
this case should be
and had
reversed
bile
place. The
because
the
repair
there was no evidence
work around
or insuffi-
did the
her and
opportunity
cient
of
observe
jury
evidence
had an
reasonable basis on
evaluate her present physical
App. 246,
ref.);
condition as
(1909,
ous m including consideration to and court. the trial Plaintiff-appellee argument charged shall remain judgment. answered such in the complained by here that the of of appeal error the The costs shall be assessed JS^ths appellant nn appellants is harmless immaterial. appellee. We to the do error as not view such such. judgment as herein reformed is here- by affirmed. judgment of trial is court by amount excessive It is $1016.53. rehearing may be Motions filed accordingly ordered remittitur party days either fifteen after the within plaintiff-appellee be filed $1016.53 date this is order announced. days ten following this Court within decision, announcement of this whereupon SHARPE, participating. not J.,
this will the judgment Court reform trial amount court of such remittitur judgment affirm the in accordance Otherwise, if the is
therewith. remittitur made,
not the judgment is and the reversed
cause is remanded for a trial. new point of
Appellants thirteenth error
complains of the effect of all cumulative presented. carefully
the errors We have error, points all re- considered C. HAYMAN CONSTRUCTION COM- testimony viewed all of and other than al., Appellants, PANY et concerning expenses, error funeral 434, presented. error is no reversible Rule COMPANY, a AMERICAN INDEMNITY Texas Rules Civil Procedure. Appellees. Corporation, al., et Texas No. 17594.
SHARPE, J,, participating. Appeals Texas, Court of Civil OPINION THE ON FILING OF Dallas. REMITTITUR April 23, 1971. This suggested Court has that appellee Rehearing Denied Oct. 1971.
remit the amount of as set forth in $1016.53 this opinion. appellee, through her at-
torney, has filed a remittitur amount
suggested and opinion authorized in the
this Court.
Therefore, in opin- accordance with the judgment
ion and Court heretofore
announced, judgment of the trial court
is reformed to the extent of the amount
hereby by appellee remitted so that judgment against
amount of the defendants $53,956.16, reduced to the sum of to-
gether $53,956.16 with interest on said percent rate of six (6%) per annum day February 26th
date entry of rendition and judgment
of the trial court. The costs as assessed notes slows ready gets a it train little its run- stop not affect but does appellants next contend statement? ning; is that true plaintiff’s permitting erred in trial court ju questions certain counsel to ask It your train down. will slow It they ry during voir dire examination which out your train stretched gets calculated to commit contend were you apt position where railroad jurors finding defendant in two. break it general on voir rule is that negligent. The a little it the train Q slow But does al jury, counsel is dire examination of bit? in its examina latitude lowed considerable