Atchison, T. & S.F. Ry. Co. v. Scott

• Decision Date: 20 January 1977
• Docket Number: No. 7791,7791
• Court: Texas Court of Appeals
• Parties: The ATCHISON, TOPEKA & SANTA FE RAILWAY CO., Appellant, v. Allen J. SCOTT, Appellee.

Page 740

551 S.W.2d 740

The ATCHISON, TOPEKA & SANTA FE RAILWAY CO., Appellant, v. Allen J. SCOTT, Appellee.

No. 7791.

Court of Civil Appeals of Texas, Beaumont.

Jan. 20, 1977.

Rehearing Denied Feb. 17, 1977.

Chilton O'Brien, Beaumont, for appellant.

J. Donald Bowen, Houston, for appellee.

KEITH, Justice.

On rehearing, our prior opinion is withdrawn and this opinion substituted in lieu thereof.

Defendant below appeals from an adverse judgment rendered after a jury trial. Plaintiff below brought suit under the Federal Employers' Liability Act (45 U.S.C.A. § 51) to recover for personal injuries sustained while in the course and scope of his employment with defendant when a train derailed.

Plaintiff alleged, in very general terms, that his injuries were caused in whole or in part by the negligence of the defendant in failing to provide him with a reasonably safe place to work. Three specific allegations of negligence were included in the short quotation found in the margin. ¹

Defendant answered by pleading that the washout of its tracks was caused by an Act of God in that there was an unprecedented rainfall in a small geographical area which caused the water to rise above the level of the tracks. Although defendant offered proof of this defense, as mentioned hereafter, requested instructions and issues on such defense and objected to the charge for the failure to submit such issues, the Court refused to submit any issue which would have enabled the jury to find that the defense was or was not established.

Wade Sheldon, Jr., the conductor of the train, said the derailment occurred as the train passed Mile Post 46, three miles from Plantersville, at about 9 p. m. While it was not raining then, it had been raining earlier. He had no reason to expect a washout on the track where the derailment occurred. After the accident he saw that a "big portion of the foundation of the track was washed away." This was beneath the rails, and the rails were swinging; that is, the ballast and the roadbed had been washed out underneath the rails. While there was a radio in the unit, they received no communication from Somerville or Silsbee (both of which had communication facilities) as to a possible washout.

Plaintiff was in a Somerville motel when he was called to work about an hour and a half before leaving Somerville when he heard a storm warning over television for that area. Somerville was having a heavy downpour at that time. The train crew received no warning in advance of the derailment.

J. D. Shepherd was the train's engineer. As he approached the place of the accident, he thought, "it didn't look right"; so, he put the train in emergency stop. No warning was given before then. The roadbed there is four or five feet above ground level. A bridge spans what is usually a dry creek. Previously, he had seen water in the creek, but it had never backed up except this night. It was a good track there. After the wreck the washout appeared to be about fifteen feet wide. The bridge that night did not take care of the volume of water, and the cause was clearly a washout.

Jerry D. Waits of Brenham was the track supervisor. The track at Mile Post 46 (scene of accident) was his responsibility. He had inspected this track on the morning of the accident and noticed nothing unusual. He had received no reports of heavy rain that trip, but previously weather reports were telephoned by the chief dispatcher at Temple. If he finds something wrong at a location, he can "flag" the location or use his radio. He was called that night after the accident had occurred.

Morgan Price, a resident of Plantersville for 55 years, said they had more than six inches of rain on the day of the accident. It fell faster in a shorter period of time than any he had previously witnessed. A. C. Coumes, a rancher, also detailed the "blinding rain", and said that water rose four feet in fifteen minutes.

Louis H. McCurry, assistant engineer for the defendant, says in building a bridge defendant uses a one-hundred-year frequency of rainfall runoffs, while the Texas Highway Department uses a fifty-year frequency. The bridge involved was designed to discharge eleven thousand cubic feet of water per second.

In 1945, some water overflowed the top of the track so the track was raised. On the day of this derailment, the rainfall exceeded the capacity of the bridge causing the washout. This rain was substantially more than one likely to occur once in one hundred years. His rainfall frequency calculation was based on maps and prior data.

Joseph L. Goldman, a meteorologist for the Institute for Storm Research in Houston, made a study of the rainstorm involved in this accident. This rain began at 5 p. m. and lasted until 7:30 p. m. For thirty minutes, a rainfall of 3.6 inches is expected to occur once every hundred years. A study of Galveston radar showed this rain equaled that rate. He testified, "I think we can safely say this is truly a very extraordinary rainfall rate."

Special Issue Number One is quoted:

"Do you find from a preponderance of the evidence that on the occasion in question the railroad was negligent?"

To which the jury responded: "We do." In answer to the second issue, the jury found that "such negligence" was a cause "in whole or in part" of the injuries sustained by plaintiff. The jury failed to find any violation of the Boiler Inspection Act, so plaintiff's judgment rests entirely and exclusively upon the finding in issue number one.

As we have pointed out earlier, plaintiff pleaded not only the violation of the Boiler Inspection Act but had two other factual allegations: inadequacy of the bridge as a violation of Art. 6328, Tex.Rev.Civ.Stat.Ann. (1926), and old and rotten ties in the track. Plaintiff offered no evidence as to the condition of the ties and his evidence with reference to the adequacy of the bridge was based, almost exclusively, upon cross-examination of the witnesses brought by the railroad. He spent a large amount of time attempting to prove a penalty violation under the federal act but the jury did not find for him on this facet of the case.

Defendant's point number seven spells out the present complaint and the procedural base therefor:

"The error of the trial court in submitting to the jury Special Issue No. 1 over the objection that such issue was a global issue which permitted the jury to make a finding of negligence based upon facts which were not pled and upon which no evidence had been introduced or upon facts pled but upon which no evidence had been introduced."

Plaintiff, relying almost exclusively upon Members Mutual Insurance Co. v. Muckelroy, 523 S.W.2d 77 (Tex.Civ.App. Houston (1st Dist.) 1975, writ ref'd n. r. e.), contends that the trial court did not abuse its discretion in using the "broad form" of submission. After careful consideration of the authorities on the subject, we disagree and sustain defendant's point number seven.

Muckelroy relied, to a large extent, upon language found in Mobil Chemical Company v. Bell, 517 S.W.2d 245, 255 (Tex.1974) with a quotation to be found at 523 S.W.2d at 81. This language is not appropriate to the case under review. While there were several specific acts of negligence alleged, our plaintiff did not introduce "evidence as to each"; thus, the language of Justice McGee is not in point.

We have carefully studied the law review article authored by Mr. Justice Pope (27 Sw.L.J. 577 (1973)) and remain convinced that the trial court, in this case and under the facts which we review, abused its discretion in submitting the broad issue. ²

Indeed, the language found in the opinion on rehearing in Muckelroy lends support to our conclusion. The Houston Court felt called upon to clarify its earlier opinion and we now hold in accordance with the Muckelroy "clarification", that the trial court should have instructed the jury to limit its consideration to those acts of negligence which were pleaded and supported by evidence. Defendant's point of error number seven is sustained.

We turn now to a consideration of defendant's contention that the manner of submission of its defense of Act of God was erroneous. No one can seriously argue that plaintiff's evidence as to Act of God was not sufficient to warrant submission of the issue under ordinary circumstances. Although requested, the trial court refused to submit an issue whereby the jury could find, or fail to find, that the occurrence was caused by an Act of God. Instead, an instruction was given which preceded the special issues in the charge. We quote the instruction in the margin. ³ Defendant submitted a requested issue accompanied by an instruction which would have elicited a direct finding on the question. It also made specific objections to the court's failure to submit the issue to the jury.

Plaintiff contends that no error is shown, arguing that the Act of God defense is simply an "inferential rebuttal issue" and such issues were condemned in Yarborough v. Berner, 467 S.W.2d 188 (Tex.1971), and Del Bosque v. Heitmann Bering-Cortes Company, 474 S.W.2d 450 (Tex.1971), as well as amended Tex.R.Civ.P. 277.

Both Rules 277 and 279 still require the submission of controlling issues made by the pleadings and the evidence. As counsel for the defendant complains:

"Giving them (the jury) a definition of 'Act of God' without telling them what the effect would be of a determination by them that Scott's injuries were caused by the 'Act of God' was a useless procedure.

"As stated in the objection, there was no way for this jury to register their determination in regard to 'Act of God'."

Being of the opinion that the trial court erred in the manner of submitting the defense, we sustain defendant's point of error number six.

We have grave doubt as to the factual sufficiency of the evidence to support plaintiff's recovery herein when tested under the usual rules as set out in Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). However...