Atchison, T. & S. F. Ry. Co. v. Ham, 11720

• Decision Date: 06 May 1970
• Docket Number: No. 11720,11720
• Citation: 454 S.W.2d 451
• Parties: The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Appellant, v. William Barney HAM, Appellee.
• Court: Texas Court of Appeals

Page 451

454 S.W.2d 451

The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Appellant, v. William Barney HAM, Appellee.

No. 11720.

Court of Civil Appeals of Texas,

Austin.

May 6, 1970.

Appellant's and Appellee's Rehearings Denied May 27, 1970.

O'Brien & Richards, Chilton O'Brien, Beaumont, McLeod, Alexander, Powel & Apffel, Galveston, for appellant.

Camp, Ellett & Camp, Robert L. Ellett, Cameron, Helm, Jones & Pletcher, David H. Burrow, S. M. Helm, Houston, for appellee.

O'QUINN, Justice.

William Barney Ham, a brakeman employed by the Atchison, Topeka, and Santa Fe Railway Company, brought this lawsuit, under provisions of the Federal Employers' Liability Act (Title 45, section 51 et seq ., U.S.C.A.) for personal injuries sustained while at work on a train passing through Cameron, Texas, enroute from Temple to Houston .

Upon the jury's answers to sixteen special issues, the trial court entered judgment April 16, 1969, awarding damages to Ham in the sum of $79,463.75.

Appellant railway company under fifteen points of error brings this appeal. Appellee Ham has replied under nine counterpoints.

Appellee was the rear brakeman and riding alone in the caboose of appellant's train enroute on August 10, 1967, from Temple to Houston . The train was moving through the city of Cameron when it struck an automobile stalled on the Gillis Street crossing in Cameron, and appellee was injured when he was thrown about the caboose after an emergency application of the train's brakes in an effort to avoid the collision.

Appellant's train was a fast freight, containing 119 cars, made up in Temple. Between Temple and Cameron the train operators were directed by radio to pick up orders at Cameron. It was necessary for Ham, as the rear brakeman, to climb down from the cupola where he was riding in order to pick up the orders at Cameron. While Ham was climbing down the cupola ladder, when he had one foot on the caboose floor, he heard the air indicating an emergency application of the train brakes.

The emergency application of the brakes was made because as the train approached the Milam Grain Crossing (also known as the Old Oil Mill Crossing) in Cameron the engineer discovered the rear of an automobile extending into the track at the Gillis Street, or jail house, crossing. The engineer testified that the speed limit set by the Santa Fe through Cameron was fifty miles per hour, and that as he approached Cameron he had reduced the speed of the train to forty-eight miles an hour. It was at the reduced speed that the brakes were applied.

The slack action ¹ of the train following application of the brakes was severe in the caboose and caused Ham to lose his hand hold on the ladder, and he was thrown to the back end of the caboose . As a result of being thrown in this manner, Ham contended that he was unable to work afterwards because of pain in his back, legs, back of his neck, and in his head.

Ham contended in the trial of the case that the negligence of the railway which caused his injuries was (1) excessive speed, (2) failure to warn him of the application of the brakes, and (3) unsafe working conditions in the caboose.

Ham, who was 66 years of age and had worked for the railway 48 years, testified that emergency brake applications were frequent occurrences on the railroad, occurring for several different reasons . Ham stated that slack action always occurred when a train made an emergency stop and that it was always different and never quite the same. Ham testified that his injuries were caused by slack action of the train when the emergency occurred and brakes were applied in the Cameron incident.

The jury found that the railway did not fail to furnish Ham a reasonably safe place to work and that failure to advise Ham by radio that the brakes were being applied was not negligence. The jury also acquitted Ham of contributory negligence in not having a sufficiently firm hold on a stationary object to prevent injury. The jury found that Ham's injuries were not the result of an unavoidable accident.

In response to a series of special issues relating to emergency, the jury found that the train crew acted under an emergency, and that the crew, after the emergency arose, did what 'ordinarily prudent persons would have done under the same or similar circumstances.'

In this series, the jury was asked:

'Do you find from a preponderance of the evidence that the acts or omissions of the train crew under such emergency * * * was the sole proximate cause of W. B. Ham's injuries?'

The jury replied, 'It was the sole proximate cause.'

In answer to earlier special issues the jury found that 'the train was being operated at a rate of speed in excess of that at which a person of ordinary prudence would have operated same under the same or similar circumstances.'

The jury found that 'such excessive speed * * * contributed to cause in whole or in part to the plaintiff's injuries. * * *'

Appellant railway urges that the findings of the jury (1) that excessive speed of the train contributed 'in whole or in part' to cause Ham's injuries and (2) the acts and omissions of the crew under the emergency were the 'sole proximate cause' are in 'irreconcilable conflict.'

Appellant argues:

'A Defendant is not liable for any injury or damage that is not a consequence of his negligence. If the sole cause of the Plaintiff's injuries or damages is the act of someone other than Defendant or a nonnegligent act of Defendant, or anything else except a negligent act or omission of the Defendant, there is no liability. These assertions are so fundamental that little citation of authority is required to support them.' Citing Harper and James, The Law of Torts, vol. 2, Ch. XX, p. 1108, sec. 20.1.

The issue of 'sole proximate cause' as submitted by the trial court dealt with the 'acts and omissions of the train crew under such emergency' and did not inquire of the jury whether the presence of the stalled automobile on the tracks, which brought about the emergency, was the 'sole proximate cause' of Ham's injuries.

The issue of 'sole proximate cause' is not available to a defendant as to his own acts and is available only to discover whether the act of a third party or an extraneous happening was the sole cause of plaintiff's injury. International-Great Northern R. Co. v. Acker, 128 S.W.2d 506 (Tex.Civ.App., Eastland, 1939, writ dsmd., jmt. cor.); Panhandle & Santa Fe Ry. Co. v. Ray, 221 S.W.2d 936 (Tex.Civ.App., Austin, 1949, writ ref., n.r.e.); Lewis v. Lansing, 325 S.W.2d 214 (Tex.Civ.App., Fort Worth, 1959, no writ); Dallas Transit Company v. Tolbert, 337 S.W.2d 617 (Tex.Civ.App., San Antonio, 1960, writ ref., n.r.e.); Querner v. De Spain, 339 S.W.2d 723 (Tex.Civ.App., San Antonio, 1960, no writ);Missouri-Kansas-Texas Railroad Company v. Wright, 311 S.W.2d 440 (Tex .Civ.App., Fort Worth, 1958, writ dsmd. by agreement).

When the issue of 'sole proximate cause' is submitted, as in this case, pertaining to acts or omissions of the defendant, it amounts to surplusage since a finding of 'a' proximate cause is all that is necessary to establish negligence on the part of the defendant. 6 Baylor Law Review 462 (1954) and cases cited.

The purpose of the emergency doctrine, which is applicable only to negligence arising after the emergency arises, is to lessen the standard of care that a person must exercise in an emergency. To require a finding of sole proximate cause in order for the doctrine to become effective would destroy any protection the doctrine might afford the plaintiff. 'There could be no finding of primary negligence on the part of the defendant that would not conflict with the sole proximate cause issue on sudden emergency.' Elmer Parrish, 23 Tex.Bar Jour. 725, 784 (1960) and cases cited.

In Harper and James, the authority relied upon by appellant, it is stated:

'Through all the diverse theories of proximate cause runs a common thread; all agree that defendant's wrongful conduct must be a cause in fact of plaintiff's injury before there is liability. This notion is not a metaphysical one but an ordinary, mater-of-fact inquiry into the existence of a causal relation as laymen would view it. Clearly this is not a quest for a Sole cause. Probably it cannot be said of any event that it has a single causal antecedent; usually there are many. For the purpose of the present inquiry it is enough that defendant's negligence be A cause in fact of the harm .' Harper and James, Vol. 2, p. 1110, sec. 20.2 (Emphasis by the authors.)

In the case before us, the jury found that the excessive speed of appellant's train, which existed prior to the sudden emergency, was negligence and contributed in whole or in part to cause plaintiff's injuries. Thus the fault of the defendant was established, and the finding that the things the crew did and did not do under the subsequent emergency were the sole proximate cause of defendant's injuries became meaningless and immaterial. If the trial court had refused to submit the issue, though requested by appellant, the action of the trial court would be sustained on appeal.

The eminent legal writer and teacher, Leon Green, a recognized authority in the field of torts, said:

'* * * the only possible excuse for using 'sole proximate cause' is for the purpose of indicating that defendant's negligence did not contribute to plaintiff's hurt, but That the hurt was caused by some third person or other factor for which defendant is not responsible.' 28 Tex.L.R. 471, 481 (1950) and cases cited. (Emphasis added.)

The only other factor, or third person, concerned in the case at bar was the stalled automobile, or its driver, sitting on the tracks in view of appellant's engineer. As we have observed, the jury was not asked to find whether the presence of the automobile, creating the emergency under which the train crew acted, was the sole cause of Ham's injuries.

Appellant railway argues that the slack action of the train was...