Allen v. Texas & N. O. R. Co.

• Citation: 70 S.W.2d 758
• Decision Date: 05 April 1934
• Docket Number: No. 1478.,1478.
• Parties: ALLEN et al. v. TEXAS & N. O. R. CO.
• Court: Court of Appeals of Texas

70 S.W.2d 758

ALLEN et al. v. TEXAS & N. O. R. CO.

No. 1478.

Court of Civil Appeals of Texas. Waco.

April 5, 1934.

Rehearing Denied May 3, 1934.

Appeal from District Court, Robertson County; W. C. Davis, Judge.

Action by Mrs. C. S. Allen and others against the Texas & New Orleans Railroad Company. Judgment for defendant, and plaintiffs appeal.

Affirmed.

Vinson, Elkins, Sweeton & Weems and J. Hart Willis, all of Houston, and John R. Grace, of Franklin, for appellants.

Bush & Parten, Tyson & Matthews, and F. A. Woods, all of Franklin, for appellee.

GALLAGHER, Chief Justice.

This suit was instituted by appellants, Mrs. C. S. Allen, surviving wife of C. S. Allen, deceased, and her six children, against appellee, Texas & New Orleans Railroad Company, to recover damages for the death of said husband and father, which they alleged was caused by the negligence of appellee. Appellee's railroad runs north and south along one of the streets of the city of Calvert. Said street is intersected at right angles by Burnett street, which runs east and west. The deceased, C. S. Allen, was attempting to cross from the west to the east side of appellee's track at the Burnett street crossing, when he was struck by the engine of a south-bound freight train and instantly killed.

The case was submitted on special issues, in response to which the jury found, in substance, that:

(a) Appellee's train was at the time of the accident being operated at a rate of speed prohibited by the ordinances of said city.

(b) Appellee's employees failed to exercise ordinary care in the rate of speed at which they operated the same.

(c) Appellee negligently failed to keep its Burnett street crossing in repair.

(d) None of such acts of negligence was the proximate cause of the death of said Allen.

All other acts of negligence charged against appellee were found in its favor. The jury further found, in substance, that said Allen was guilty of negligence proximately causing or contributing to his death, as follows:

(a) He failed to exercise ordinary care to discover the approach of the train.

(b) He failed to exercise ordinary care to keep a lookout to discover such approach.

(c) He failed to exercise ordinary care to avoid being struck by the train after he discovered its approach.

(d) He failed to exercise ordinary care in listening for the approach of a train before going on the crossing.

(e) Such negligence proximately caused or contributed to cause his death.

Various other acts of said Allen were found by the jury to have been negligent, but not, with two or three exceptions, the proximate cause of his death. The jury also found that the accident was not unavoidable, and assessed damages in favor of the surviving widow in the sum of $6,000 and in favor of a widowed daughter in the sum of $2,000. The court rendered judgment on the verdict that appellants take nothing by their suit and that the appellee recover its costs.

Opinion.

Appellants present an assignment in which they contend that the court erred in overruling their motion for a new trial based on the ground that one of the jurors was related to one of the attorneys for appellee. The juror L. C. Reagan was a brother-in-law of the Honorable H. A. Bush, who as attorney for appellee took an active part in the trial of the case. There is no contention that such relationship in itself disqualified the juror. The specific contention is that appellants' counsel, in examining the several jurors, inquired concerning the relationship of each of them to any of the attorneys representing appellee; that said juror Reagan failed to disclose such relationship; that had he done so appellants would have excluded him from the trial panel by peremptory challenge. The testimony with reference to whether said juror was interrogated concerning his relationship to counsel was sharply conflicting. The court overruled the motion and is therefore deemed to have found against appellants' contention. This court has no jurisdiction to reverse a finding of fact made by the trial court on conflicting testimony and hold the contrary, when there is substantial testimony to support the finding so made. The Leader v. Elder Mfg. Co. (Tex. Com. App.) 39 S.W.(2d) 880, pars. 1 and 2, and authorities there cited; Williams & Stephens v. Belo (Tex. Com. App.) 41 S.W.(2d) 22 et seq., pars. 1, 4 and 6; Coleman v. Rollo (Tex. Civ. App.) 50 S.W.(2d) 391, 394, par. 6; Irvin v. Drake (Tex. Civ. App.) 16 S.W.(2d) 900; Walker v. Quanah & A. P. Ry. Co. (Tex. Com. App.) 58 S.W.(2d) 4, 5, par. 3.

Appellants present an assignment in which they contend that the court erred in overruling their objection to certain statements made by one of appellee's attorneys in his argument to the jury. The deceased was killed while attempting to cross from the west to the east side of appellee's track at a regular street crossing. Appellants alleged in their petition that the deceased stepped in a hole or caught his foot under the west rail of the track and fell across it, and was in that position when struck by the engine. They introduced testimony tending to support such allegation, but the testimony on such issue as a whole was conflicting. Appellants' witness Blasienz testified that the first blood stains were four or five feet south of the street crossing; that the body was found farther down the track; and that clothing was scattered from about the middle of the crossing toward the body. Appellee objected to the testimony just recited on the ground that it tended to show mutilation of the body, but the court overruled the objection. No further testimony along this line was offered. There was no testimony introduced with reference to the position of the feet of the deceased. The Honorable H. A. Bush made the closing argument in the case for appellee, and stated therein: "They say that Mr. Allen either stumbled in a hole or that he hung his foot under that rail and fell prone across the track. I am going to tell you, gentlemen of the jury, that it didn't happen that way. If Mr. Allen had hung his toe under that rail and fallen across that track, those wheels would have cut his feet off and left them on the west side. There is not a bit of testimony on the part of the plaintiffs (appellants) that Mr. Allen's feet, if they say he fell across those tracks, if they put their case on the fact that he fell down under those wheels, were on the west side of the track."

Appellants objected to said statement on the ground that the same constituted an unfair and prejudicial argument for the reason that the court had excluded evidence offered by them with reference to the position and condition of the deceased's body after the collision, and further because said argument was entirely outside of the record and not supported by the record, which objection the court overruled.

Appellants, in their objection to said argument, did not charge that the same constituted an assertion of fact purporting to be based on personal knowledge of such attorney, and we do not think that such construction would have been placed upon same by an ordinary juror. Appellants' assertion that such argument was unfair and prejudicial was, by the terms of their objection, predicated on their contention that the court had excluded the evidence offered by them concerning the position of the body, and on the further contention that the same was without the record. The court's qualification of appellants' bill shows that the court admitted all the testimony offered by them on the position and condition of the body, and that they did not offer to prove whether the feet were severed from the body and, if so, where they were found. The statement of counsel that, had deceased been lying prone on the track when the engine struck his body, his feet would have been severed and left on the west side of the rail, was merely his inference drawn from the facts in evidence. We cannot say that it was an unreasonable one, and we do not think he transcended the privileges of argument when he called attention to the fact that there was no testimony refuting such inference. The rule of law applicable here is laid down in 64 C. J. p. 265, § 284, as follows: "Counsel may state all proper inferences from the evidence and may draw conclusions from the evidence on his own system of reasoning, although such inferences as stated by counsel are inconclusive, illogical, erroneous or even absurd, unless such conclusions are couched in language transcending the bounds of legitimate argument." The text quoted is supported by a great array of authorities cited in notes thereto. See, also, Texas & N. O. Ry. Co. v. Conway, 44 Tex. Civ. App. 68, 98 S. W. 1070, 1073, bottom first column (writ refused); Gray v. Burk, 19 Tex. 228, 233; Missouri Pacific Ry. Co. v. White, 80 Tex. 202, 207, 208, 15 S. W. 808; Southern Cotton-Oil Co. v. Wallace, 23 Tex. Civ. App. 12, 54 S. W. 638, 642; City of Waco v. Killen (Tex. Civ. App.) 59 S.W.(2d) 940, 941, 942, and authorities there cited. The trial court is necessarily vested with large discretion in the matter of permitting, restraining, or controlling argument, and his rulings with reference thereto will not be reviewed unless such discretion is abused. Fidelity-Phoenix Fire Ins. Co. v. Mumaw (Tex. Civ. App.) 287 S. W. 120, 121, par. 3, and authorities there cited.

Appellants present an assignment in which they assail the sufficiency of the evidence to support the findings of the jury that none of the several acts of negligence found against appellee was the proximate cause of his death. The acts of negligence so found were the excessive speed of appellee's train and the defective condition of the crossing over its track. Proximate cause is ordinarily a question of fact to be determined by the jury from all the evidence before them, both direct and circumstantial. Texas & N. O. R. Co. v. Ewing (Tex. Civ. App.) 46 S.W.(2d) 398, 399, pars. 1 and 2, and authorities...