211 S.W. 319 | Tex. App. | 1919
This suit was brought by A. L. Stivers to recover of the Texas Pacific Railway Company damages for personal injuries alleged to have been sustained by him while a passenger in a derailment and wreck which occurred on that railroad on June 17, 1916, near Putnam, in Callahan county. Briefly stated, the petition alleged, and the undisputed facts show, that on the date and at the place above given A. L. Stivers was a passenger on the west-bound Sunshine Special train of appellant. At that point the train, while running at a very high rate of speed (the undisputed evidence was that the train was running 75 miles an hour downgrade, and that at the time of the wreck several passengers were holding their watches, estimating the speed), the entire train, except engine and tender, left the track, went down an embankment, and was overturned and wrecked. After the wreck the railroad track "looked like a rainbow; the rails were twisted and the ties were cut to splinters where the wheels ran over them."
The negligence alleged as causing the derailment, in addition to the high and dangerous rate of speed, was that appellant had permitted its track, roadbed, ties, and rails to become defective and unsafe, and its train, engine, tender, cars, coaches, and trucks to become defective, insecure, and unsafe. Appellant answered by general denial, and that appellee was not injured in the wreck of the train, and sustained no damage thereby. Other than as to the rate of speed, the fact of the wreck of the train, and the appearance of the track after the wreck, as above stated, appellee introduced no evidence as to any specific defects, insufficiency, or unsafe condition existing in either track or train, but relied solely on the fact that the train was derailed and wrecked. Appellant offered no evidence, excuse, or explanation as to the cause of the wreck. On special issues submitted the jury found that appellee was injured, and assessed his damages at $4,400.
Appellant presents two assignments of error. The first is to the giving of the following instruction:
"You are instructed that in this case derailment and wreck of defendant's passenger train, as testified to by the witnesses in this case, whether the same resulted from the spreading of the track, the running off of the train, or the breaking down of the train, being unexplained, creates a presumption of negligence, which makes it liable to any passenger who may have sustained an injury in said wreck. You will therefore, in considering of your verdict, consider only the questions of whether or not the plaintiff was injured in said wreck, the extent of his injuries, if any, and the amount of the damages, if any, he has sustained thereby."
The insistence of appellant under this assignment is that the question as to whether or not the defendant was negligent in the handling, running, or operation of its train was a question of fact, solely, to be decided by the jury, and not a question of law; that the instruction was an affirmative charge to find for the plaintiff for all damages which he may have sustained, the instruction being upon the weight of the evidence. Appellant refers us to Railway v. Thompson,
Without discussing at length each of the following cases, we have concluded that they so hold. It is not questioned but that negligence, ordinarily, is an issue of fact and not of law. However, we understand the rule to be that when a derailment of a passenger train occurs, and a passenger is injured and the derailment is shown, and no explanation is offered, negligence is implied. The company has always the means to rebut the presumption of negligence if unfounded. In G., C. S. F. Ry. v. Smith,
"`The fact that the car runs off is evidence of defect or negligence somewhere, and when the track and the cars are under the exclusive control of the defendants it has been held evidence of negligence sufficient to charge them, in the absence of any explanation showing that the accident happened without fault on their part. Le Barron v. East Boston Ferry Co., 11 Allen [Mass.] 312 [87 Am.Dec. 717]; Cooper v. London Brighton Ry. Co., 5 Q. B. 747. It is not incumbent on the plaintiff after proving an accident which implies negligence to go further and show what the particular negligence was when from the circumstances it is not in his power to do so"
— and said:
"This rule seems well established by authority, and is grounded on reasons which commend its application in the ordinary transactions of life."
True, in the Smith Case evidence was offered to show that the derailment resulted from the spreading of the track, caused from the want of support from ties, and therefore, in Mexican Cent. Ry. Co. v. Lauricella,
"It is a reasonable and sound doctrine that where a passenger is injured by an accident, such as the derailment of a train at a place where the track and train are entirely under the control of the company — that is to say, where they are not interfered with by any extraneous force — a presumption of negligence arises, and that, in order for the company to exonerate itself from liability for the injury, it must adduce evidence to show that the accident could not have been avoided by the exercise of the utmost care and foresight reasonably compatible with a prosecution of its business."
In that case the defendant undertook to give a reasonable explanation for the derailment, which possibly places the case in line with the Smith Case. In St. Louis S.W. Ry. Co. v. Parks,
"Clearly, an injury to a passenger on a railroad, resulting from a derailment of a train or the abnormal operation of the machinery, gives rise to an inference of negligence on the part of the company which may authorize the jury to so find; and it may be that in such a case, where the defendant has offered no evidence to rebut the inference, the court would be warranted in instructing the jury to find for the plaintiff upon the issue."
In G., H. S. A. Ry. Co. v. Miller,
"In this cause the undisputed evidence shows that the plaintiff was a passenger on one of defendant's trains, which was derailed and wrecked while plaintiff was a passenger thereon. I therefore instruct you that defendant would be liable to plaintiff for any injuries, if any, which you may find from the evidence were directly caused by said derailment and wreck, and which are alleged in the petition."
The Galveston Court of Civil Appeals sustained the charge under the Railway v. Parks Case, supra. In St. Louis S.W. Ry. Co. v. Harkey,
"The plaintiff is not bound to prove more than enough to raise a fair presumption of negligence on the part of the defendant, and of resulting injury to himself. Having done this, he is entitled to recover, unless the defendant produces evidence sufficient to rebut this presumption. * * * Therefore, having proved the resulting injury, they were entitled to recover. What harm, then, is done by the court not leaving it to the jury to say whether the derailment of the train was negligence? Had such an issue been submitted, the jury would have been bound to find on it in favor of appellees, for the undisputed evidence raised a fair presumption of negligence."
We think the cases referred to, and many others examined, but to which, for brevity, we make no reference, clearly establish the rule that where the thing, in this instance the roadbed, equipment, the train, and its management, is shown to be under the management of the defendant company, or its servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. McCray v. G., H. S. A. Ry. Co.,
Appellant by its second assignment claims reversible error in admitting in evidence the following statement in the deposition of W. K. Stivers, father of appellee:
"Since the time he (meaning appellee) went to California he has not been able to perform his work in his office or business, nor profession or occupation, and has been delicate."
The objection is that the answer to the question was a conclusion of the witness, and the witness did not show himself to be an expert, and the testimony invades the province of the jury. The witness, while not an expert, was so situated that he could observe and know the facts stated. We think the evidence should have been excluded. Express Co. v. Boyle,
"His injuries totally disabled him from doing any business while he was under my care and while he was at Riverside."
After reaching his home in Missouri, in July, 1916, appellee was examined by Dr. Mitchell. Dr. Mitchell testified that he found on examination that appellee —
"had received an injury and that it had set up acute nephritis, and also I found that he had a rupture. I treated him for about a year, and I saw him from two to three times a week, and sometimes six or seven times a week. Dr. Stivers [appellee] suffered pain from his injuries, and sometimes to such an extent that I had to give him narcotics. * * * I made an examination of the urine at least 50 times, and I found sometimes blood, sometimes pus, sometimes albumen and earthy phosphates, and the same would indicate that he had a high grade of inflammation of the kidneys. Dr. Stivers had an inguinal hernia. When I first attended Dr. Stivers, I found that he had acute nephritis and it became worse, until now it is chronic. I would state that Dr. Stivers' case will never be much better and that he will continue to have attacks of nephritis from time to time, which attacks will last from one to six weeks, and party will be in bed during that time. * * * I will state that Dr. Stivers' case has already become chronic and will so remain."
Appellee, himself a physician, testified practically as did Dr. Mitchell. He said in addition: *322
"The doctors have all advised me to be quiet, and that is what I am doing. I have not practiced my calling since my injury. I have not done it, because I am not able."
In our opinion the evidence, other than that objected to, is amply sufficient to warrant the verdict of the jury, and that the judgment should not be reversed because of the admission of the statement of W. K. Stivers. The admission of the statement, we think, was not reasonably calculated to influence the jury in arriving at their verdict. M., K.
T. Ry. Co. v. Burk,
Finding no reversible error, the case is affirmed.