211 S.W. 263 | Tex. App. | 1919
We are inclined to think the trial court erred when he refused to receive the verdict first returned by the jury and to render judgment thereon in appellant's favor. If appellee, in alighting from the train, was guilty of negligence (in that she did not look to see the position of the step box) which caused or contributed to cause the injury she suffered, as the jury by their tenth and eleventh findings in said verdict determined she was, then she was not entitled to recover anything of appellant, notwithstanding its brakeman also was guilty of negligence which was a proximate cause of said injury. Therefore the fact that the findings in said verdict with reference to issues of negligence vel non on the part of appellant's brakeman may have been uncertain or contradictory was not a reason why the verdict should not have been received and judgment thereon rendered that appellee take nothing by her suit. As we construe said verdict, the fourteenth finding (that appellee exercised ordinary care for her own safety in alighting from the train as she did) was the only one in it which furnished even a pretense of a reason for doubting that an effect of the findings was to determine that appellee was guilty of negligence which was a proximate cause of the injury she sustained. That finding harmonizes with the tenth and eleventh, when construed as a finding that appellee was not guilty of negligence in the other respect charged against her, to wit, that she permitted her dress to drag on the steps of the car as she walked down same; and we are inclined to think it should be so construed. 38 Cyc. 1930.
But if it should not be, and if the trial court therefore did not err when he refused to receive that verdict and render judgment thereon as suggested, we are of the opinion, nevertheless, that the judgment should be reversed; for we think the findings of the jury in the second verdict on the issue of contributory negligence on the part of appellee were not more certain than were the findings in their first verdict on that issue. As noted in the statement above, the fourteenth finding in the second verdict was that appellee failed to exercise ordinary care for her own safety in attempting in the manner she did to alight from the train. That meant, of course, that in attempting in the manner she did to alight from the train she was guilty of negligence. Now, the manner in which appellee attempted to alight from the train, according to the findings, was to walk down the steps of the car and step therefrom to the step box without first looking to see its position on the ground. Therefore the jury must have meant, when they found appellee to have been guilty of negligence in the manner in which she alighted from the train, that she was negligent because she did not look, before stepping upon it, to see the position of the step box.
If she was negligent in that respect, it must have been because a reasonably prudent person under the circumstances would have looked to see the position of the box before stepping upon it. If a reasonably prudent person would have done that, it must have been because such a person would have anticipated that in stepping for the box without looking to see its position he might miss it, or so step on it as to cause it to turn or tilt, as it did with appellee. If a reasonably prudent person would have anticipated such a result, and the jury in effect found he would, it should, we are inclined to think, be held as a matter of law that the negligence of which the jury found appellee to be guilty was a proximate cause of the injury she suffered, and therefore that the finding of the jury to the contrary must have been the result of a misapprehension on their part of the definition of "proximate cause" contained in the court's instructions to them. It would follow from this view of the findings in the second verdict, that judgment thereon should have been rendered for appellant, because it appeared that appellee was guilty of negligence which was a proximate cause of the injury she suffered; and we would be inclined to think such a judgment should have been rendered, but for the eleventh finding in that verdict, to wit, that appellee was not guilty of negligence which caused or contributed to cause the injury she sustained, because she did not look to see the position of the box before she stepped on it. If that finding means that she was not guilty of negligence in that particular, then clearly, we think, it is contradictory of the fourteenth finding in the same verdict. If it means she was guilty of negligence in the respect indicated, but that the negligence was not a proximate cause of the injury, we are inclined to think the contrary of the conclusion, that the negligence was not a proximate cause, appeared as a matter of law. *265
In any view which, as we see it, reasonably can be taken of the findings in the last verdict, they ought not to be treated as a sufficient support for the Judgment rendered. Therefore the judgment will be reversed, and the cause will be remanded for a new trial.
