' This is а suit by appellee C. B. Younger, under the Federal Employers’ Liability Act, sections 51-60, Title 45, United States Code Annotated, against appellant the Texas and Pacific Railway Company for damages for personal injuries alleged to have been sustained by appellee while working as a brakeman for appellant. Judgment was *559 rendered for appellee for $17,875, and the company appealed.
Appellee alleged that he sustained personal injuries when a boxcar door fell on him as he and another brakeman were attempting to open the door for the purpose of unloading materials that had been transported in the boxcar; that his injuries were “proximatеly caused, in whole or in part, by the negligence” of appellant and that such negligence was “the proximate cause, in whole or in part,” of appellee’s injuries; that the boxcar door was not in safe condition; that the hinges of the door were old, worn, defective and out of repair; that appellant failed to make a reasonable and proper inspection of the boxcar door; failed to advise appellee of the condition of the door and its parts and appurtenances; and failed to furnish appellee with safe equipment with which to dp his work. The petition gave notice that appellee desired not to be limited to the spеcific acts of negligence set out therein, and there were general allegations of negligence on the part of appellant to the effect that the boxcar and door were in the exclusive possession and under the exclusive management and control of appellant; that the door would not have fallen and aрpellee would not have been injured had appellant exercised ordinary care, and that appellee could not point out the exact defect or defects or exactly what caused the door to fall, and that such information was in the exclusive possession of or available to appellant, and that in this connection appellant was “guilty of negligence which proximately caused, in whole or in part,” the injuries sustained by appel-lee, and appellee specifically invoked the doctrine of res ipsa loquitur.
The jury found that the door was defective; that the defective condition of the door was negligence; that the appellant failed to make a proper and reasonable inspection of the door, and such failure was negligence; that appellant knew, or by the exercise of ordinary care should have known, prior to the accident, that the door was defective; that appellant failed to advise appellee of any defect in the door, and such failure was negligence; that'each of such acts of negligence was a proximate cause, in whole or in part, of appellee’s injuries; and that appellee was not negligent in any of the particulars inquired about.
Appellant’s points of error involve the propositions that the court erred in including in the “proximate cause” issues the words “in whole or in part,” as follows: “Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause in whole or in part of the injuries, if any, sustained by the plaintiff?”; that the evidence was insufficient to sustain the jury’s findings as to such negligence and proximate cause; that the court erred in overruling its objections to the argument of appellee’s counsel; and that the verdict is excessive.
Section 51 of the Federal Employers’ Liability Act provides that a railroad' shall be liable in damages to any person suffering injury while he is employed by such carrier in interstate commerce, if the injury results, in whole or in part, from the negligence of any employee of the carrier or by reasoffof any defect or insufficiency, due to its negligence, in its cars or other equipment.
Appellant objected that the use of .the words “in whole or in part” in the “proximate cause” issues destroyed or' diminished the court’s prior definition of proximate cause and in effect told the jury that they were authоrized to answer the issues favorably to appellee if they believed that the negligence inquired about was only in part a proximate cause of the injuries.
Whether it was error to include in the proximate cause issues the words “in whole or in part,” which is a departure from the conventional and traditional manner of submitting such issues, raises a question that so far as investigation by counsel and ourselves reveals has never before been presented to any court. In the disposition of this interesting and important question we áre controlled entirely by the Federal statute and adjudications by the Federal courts. While suits under the Federal Employers’ Liability Act may be maintained in appropriate courts оf any state, .we are dealing with rights afforded the parties by
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the laws of the United States and not by state laws. Mondou v. New York, N. H. & H. R. Co.,
No substantive right of any party to such suits may be impaired by any local statute, rule of decision, or forms of local practice. Davis v. Wechsler,
As to allegations of negligence and proximate cause, a complaint substantially in the language of the statute is sufficient. Southern Ry. Co. v. Peters,
In Eglsaer v. Scandrett, 7 Cir.,
“The words ‘in part’ have enlarged the field or scopе of proximate causes — in these railroad injury cases. * * * ”
“ * * * It seems that it would have been an incorrect statement of the law to have advised the jury that before they could find for plaintiff they must find that negligently permitting the steam to escape was the proximate cause, for the reason that it might have been only partly the cause, and still the plаintiff be entitled to recover. * * * ” St. Louis & S. F. R. Co. v. Bateman, 112 Old. 86, 24-0 P. 110, 112. An instruction that if the defect complained of “contributed to cause” the injury defendant would be liable, was approved in *561 Wolfe v. Payne,294 Mo. 170 ,241 S.W. 915 , 917; affirmed Davis v. Wolfe, 263 U.S. .239,44 S.Ct. 64 ,68 L.Ed. 284 ; and the court said: “ * * * it was sufficient that plaintiff prove the existence of the defective grabiron and that it was in part the cause of plaintiff’s injury. * * * ”
In the instant case, the court defined proximate cause as “ * * * a cause which in a natural and continuous sequence, unbroken by any new and independent cause, produces an event and without which the event would not have happened; and for an act or omission to become a proximate cause of an injury, it must have been reasonably anticipated by a rеasonably prudent person, in the exercise of ordinary care, that such injury or some similar injury would follow as a natural consequence. There may be more than one proximate cause of an event.” We do not believe that the inclusion of the words “in whole or in part” detracted from such definition. It would seem that to require a finding that an act “was a proximate cause, in whole, or in part, of plaintiff’s injury,” placed at least as great a burden on the plaintiff as to require a finding that an act or omission “contributed to cause” the injury, or that it “was in part the cause” of the injury, or that the injury, was “caused from and resulted in whole or in part from” the act, or that the injury “resulted in whole or in part from” the act, or that the act “contributed to” the injury, or that it was “partly the cause” of the injury.
It is our opinion that the court did not err to the prejudice of appellant in submitting the proximate cause issues in the form in which they were submitted. We are not to be understood, however, as holding that such submission would be proper in cases controlled by the law of this statе.
The character and amount of evidence required to establish negligence in a suit under the Federal Employers’ Liability Act is not subject to the control of the states in whose courts such suits are tried, and therefore whether there is an issue for the jury is a federal question. Chicago, M. & St. P. R. Co. v. Coogan,
It was shown that appellee and another brakeman were trying to оpen the door of the boxcar for the purpose of unloading materials when the door fell, striking ap-pellee across the neck and shoulder. The door was suspended from the top by pulleys or hooks over an iron rail, and was to be opened by being pushed back along the side of the car, with the pulleys running or the hooks sliding over the rail. On thе occasion in question, the door had sagged some half inch or more, and appellee was lifting up on the bottom of the door so the other brakeman could lift the latch out of the hasp when the top of the door came loose from the car and fell on appellee, inflicting the injuries complained of. The door was abоut eight feet by nine feet in dimensions, and was “very heavy,” one witness estimating its weight from 350 to 400 pounds. Unquestionably, the car and the door were in the exclusive control of appellant. No evidence was offered by appellant .as to the condition of the boxcar door.
The jury found that the door was defective and that its defective condition wаs negligence and that such negligence was a proximate cause, in whole or in part, of plaintiff’s injuries.
“ * * * But, while the naked fact that an accident has happened may be no evidence of negligence, yet the character of the accident and the circumstances in proof attending it may be such as to lead reasonably to the belief that, without negligence, it would not have occurred. [Texas & St. L.] Railway Co. v. Suggs,62 Tex. 323 . ‘Where the particular thing causing the injury has been shown to be under the management of the defendant, or his 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 reasonablе evidence, in the absence of explanation, that the accident arose from want of care.’ * * * ” Washington v. Missouri, K. & T. Ry. Co.,90 Tex. 314 ,38 S.W. 764 , 765.
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In San Juan Light & Transit Co. v. Requena,
In Jesionowski v. Boston & Maine R. Co.,
In such cases the facts of an occurrence may support a finding of negligence but do not compel such a finding; they may furnish circumstantial evidence of negligence when direct evidence is lacking; they may call for an explanation but not require it; they may make a case for a jury verdict but they do not forestall a verdict. Western Transp. Co. v. Downer,
In Southwestern Telegraph & Telephone Co. v. Sheppard, Tex.Civ.App.,
“ * * * the inferences to be drawn from uncontroverted as well as controverted facts, are questions for the jury. * * Once there is a reasonable basis in the record for concluding that there was negligence which caused the injury, it is irrelevant that fair-minded men might reach a different conclusion. For then it would be an invasion of the jury’s function for an аppellate court to draw contrary inferences or to conclude that a different conclusion would be more reasonable. * * * ” Ellis v. Union Pacific R. Co.,
Under the above cited authorities, we believe that the evidence was sufficient to warrant the jury’s finding that the boxcar door was defective and that such defective condition was due tо appellant’s failure to exercise ordinary care.
The argument complained of is set out in the bill of exception. The ground of objection was that the argument was outside the record. The court nowhere certifies that it was so. A very casual inspection of the statement of facts will disclose that most of the quoted argument was a substantially correct statement of the testimony. Some of it may not have been justified by the record. In Williams v. Merchants Fast Motor Lines, Tex.Civ.App.,
Appellant’s finаl point is that the verdict is excessive. A physician testified that it was his opinion that appellee was permanently incapacitated from performing his duties as a brakeman. Appellee had been “railroading” nearly all the time for thirty-two years. At the time of the accident he was earning about $2,500 per year, and had a life expectаncy of more than fifteen years. Appellee testified that his injuries caused and were still causing excru■ciating pain. This evidence was corroborated by the physician. The court permitted the jury to consider appellee’s diminished earning capacity and his physical and mental pain. Diminished earning capacity is not readily susceptible of precise measurement. What will fairly compensate for physical and mental pain is much less so. We are not prepared to say that the amount fixed by the jury is excessive.
Finding no error in the record, the judgment is affirmed.