This action arose under the workmen’s compensation law of Texas, Revised Civil Statutes of Texas, Articles 8306 et seq., Vernon’s Ann.Civ.St. It was instituted by Cоrean’ M. Strawn and Rose A. Strawn, the widow and daughter of Austin Strawn, deceased, against the appellee as insurer of the International Creosoting and Construction Company, for which company the deceased was working when he met his death in' the manner hereinafter stated. At the conclusion of the evidence for plaintiffs, appellants here, the court ruled that there was no еvidence to prove that the death of the deceased was the result of an accidental injury, and directed the jury to rеturn a verdict for the defendant.
The evidence shows that on the morning of December 6, 1950, Strawn, who had been in the company’s employ for thirty-four years, was engaged in counting cross-ties with a certain fellow servant named Rayj both of whom had been working for aрproximately thirty minutes. After completing their assignment, the two men proceeded together toward the yard office to prеpare their reports. After walking in that direction for an estimated seventy-five yards, Ray, surprised by a sudden and unusual noise, turned to find Strawn lying on the ground. When he attempted to help Strawn1 to his feet, the latter’s only response was a “gurgling noise.” Two minutes later another еmployee, who had hastened to the scene, examined Strawn and found that he was no longer breathing.
The road on which the twо employees were walking at the time of the accident was covered with rocks, some of which were estimated to bе two-and-a-half inches in *779 •diameter. The ground was sprinkled with snow; and, according to the appellants’ testimony, the highway between their home and the plant was frozen, and there was “ice everywhere.” From the marks in the snow, it appeared that the deceased’s right foot had slipped or dragged for a distance of eighteen or twenty inches. Small amounts of blood were found on the deceased’s left temple and on the ground. His glasses were broken by the fall, and were found near the body with his knife, pencil, and а twenty-five cent piece, indicating that he might have suddenly withdrawn his hands from his pockets. Ray testified that he could not recall whether there was anything present to indicate that Strawn had used his hands in an effort to cushion or divert his fall; however, another witness stated thаt, on examining the scene, he found nothing which so indicated. No testimony was offered as to the actual position of the deсeased’s arms and hands while his body lay on the ground.
There was nothing unusual about Strawn’s departure for work on the morning of his death; he had еaten his usual breakfast, left at the customary hour, and made no complaints of ill-health to his wife or fellow-employees. Some testimony was offered to show that he might have had heart trouble, as, on the 10th or 11th of November, he had “fainted or something” while in' his home. There was no medical testimony as to the cause of his death.
After the plaintiffs, appellants here, had rested their сase, the appellee filed a motion for a directed verdict on the ground that the claimants had failed to show by a рreponderance of the evidence that the deceased had died from an accidental injury, and that to permit thе jury to decide the question would invite speculation’, conjecture, and guesswork. This view was accepted by the court and sо stated in its peremptory instruction to the jury. It is contended here that the court’s action in sustaining the motion was improper, sincе the evidence as to the cause of death had raised ari issue which should have been determined by the jury. We think this contention is correct.
Within the meaning of the Texas Workmen’s Compensation Act, in order for death or disability to be compensable, it must be shown to have resulted from an accidental injury. It is not necessary that the damage be visible or external, nor is direct evidence required to establish its existence. Brodtmann v. Zftrich General Accident & Liability Ins. Co., Ltd.,, 5 Cir.,
The statute, Article 8309 et seq., requires that the “damage or harm to the physical structure of the body” originate within the scоpe of employment and during the employee’s work. This court, in Salinas v. New Amsterdam Casualty Company, 5 Cir.,
It is well settled that the court may withdraw a case from the jury an'd direct a verdict for either side, where the evidence is undisputed or is so conclusive that the court, in its judicial discretion, would be compelled to sеt aside a verdict
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not in conformity- therewith. In determining whether the instructed verdict was properly given, we should indulge all reasonablе inferences -from the evidence in favor- of the one against whom the verdict was directed. Reid v. Maryland Casualty Co., 5 Cir.,
The judgment appealed from is reversed, and the cause remanded for further proceedings not inconsistent-with this opinion.
Reversed and remanded.