Bell v. Missouri-Kansas-Texas R. Co. of Tex.
| Decision Date | 01 April 1960 |
| Docket Number | No. 16078,MISSOURI-KANSAS-TEXAS,16078 |
| Citation | 334 S.W.2d 513 |
| Parties | C. L. BELL, Appellant, v.RAILROAD COMPANY OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Jacobs, Davis & Schmidt, and Maurice M. Davis, Houston, for appellant.
William A. Thie, Denison and Fred L. Wallace, Fort Worth, for appellee.
On February 12, 1960, we entered judgment reversing the judgment of the trial court and remanding the cause for another trial. After further study of the case on motion for rehearing, we have come to the conclusion that we were in error in so doing, and that the proper judgment to be entered would be that of affirmance. The former opinion is hereby withdrawn and the following substituted therefor.
The appeal is by the plaintiff from a take-nothing judgment entered in a suit for damages because of personal injuries allegedly sustained under provisions of the Federal Employers' Liability Act (F. E. L. A.), 45 U.S.C.A. Sec. 51 et seq. Plaintiff's injuries resulted from the upset of an automobile driven by him on a public highway within the State of Texas, such upset allegedly having resulted in whole or in part by reason of the failure of a defective tire and/or tube on the right front wheel of the automobile. The automobile was furnished by the defendant railroad employer to the plaintiff for use in the scope and course of his employment as a 'General Livestock Agent'. There is no question but what the suit is controlled by the Act.
By answers returned to Special Issues Nos. 1 and 2 the jury found that the tires and tubes on the automobile furnished the plaintiff were defective at the time and place in question. Conditionally submitted, for answer of the jury only in the event the jury so found as to tires and tubes, or as to either the tires or the tubes, was the issue which read as follows:
'Special Issue No. 2A: * * * Question: Do you find from a preponderance of the evidence that the happening in question was a direct and proximate result of such defective tires or tubes, if you have found that such tires or tubes were defective? Answer 'yes' or 'no'.' To this issue the jury returned the answer, 'No'.
Plaintiff's objection to the aforesaid issue reads as follows: 'Plaintiff objects and excepts to special issue No. 2-A inquiring as to whether the happening in question was a direct and proximate result of such defective tires or tubes for the reason that the same should confine the question to the proximate cause in whole or in part of such defective tires or tubes and the use of the word 'result' instead of the word 'cause' might and probably would mislead and confuse the Jury, and the failure of the Court to add the words 'in whole or in part' as in other issues submitted concerning the alleged negligence of the defendant, is reasonably calculated to cause and probably would cause the Jury to believe that a different test should be applied in answering this special issue and that the Court is of the opinion that a different test should be applied.'
We are of the opinion that the special issue as submitted actually imposed a greater burden upon the plaintiff than is required by law. The issue is one which is so framed that the jury would not be enabled to return an affirmative answer thereto upon finding the plaintiff's injuries to have been the 'proximate' result of the defective condition found but necessarily would be required to find, additionally, that the injuries were the 'direct' result of such defect. However, we are further of the opinion that the plaintiff's objection to the issue was not sufficient to point out and preserve the error for purposes of reversal. Under the provisions of Texas Rules of Civil Procedure, rule 274, a party objecting to a charge must not only point out distinctly the matter to which he objects but also the grounds of his objection. Where a point presented upon appeal is founded in the contention that a special issue casts a greater burden upon the complainant than was proper under the circumstances, an appellate court is required to apply certain tests in determination of whether reversible error exists under the circumstances. A part of the tests to be applied involves the determination of whether the complainant so sufficiently stated the same contention and reason therefor in his objection to the trial court as to make it apparent that the trial court, though fully cognizant of the ground of complaint, nevertheless chose to submit the issue. That plaintiff so sufficiently objected to the issue is not apparent in the present instance, and therefore we would treat as 'waived' the right to complain because of the increased burden cast upon the plaintiff through the presence of the word 'direct'.
As applied to the 'reason' which actually was mentioned in the objection, to wit: 'for the reason that the same should confine the question to the proximate cause in whole or in part of such defective tires of tubes', we are of the opinion that the addition of the desired qualifying words, 'in whole or in part' would not have lessened in any degree the burden otherwise carried by plaintiff upon the same issue. The charge contained a definition of the legal term 'proximate cause' in the usual and customary language used when the element of 'new and independent cause' is embodied in its definition. We recently had occasion to make an analysis of what effect, if any, the use of the phrase 'in whole or in part' (in an analogous issue) would have upon the burden inherent in all such issues. We concluded that such qualifying words would not lessen the burden otherwise carried by the plaintiff upon such an issue, at any event when the issue is considered in connection with the definition of 'proximate cause'. Texas & R. Ry. Co. v. Younger, Tex.Civ.App., Fort Worth 1953, 262 S.W.2d 557, writ refused n. r. e.
Plaintiff objected to the inclusion, within the definition of the legal term 'proximate cause', of the element of new and independent cause. Of course, if in the trial of a negligence case the evidence raises the issue of new and independent cause it may be reversible error not to include the term in such a definition. Conversely, where the evidence does not raise the issue of new and independent cause it may be reversible error to inject it under the definitions. In our opinion, the circumstances of the instant case are such that no error to the prejudice of the plaintiff may be presumed. There was no evidence on the motion for new trial in demonstration that such error probably resulted in prejudice to the plaintiff, nor is any prejudice therefrom apparent when the whole record is considered. For this reason the point of error is overruled.
Plaintiff filed numerous specially requested issues which were denied. Complaint because of the refusal of certain of the issues was made on motion for new trial, and is brought forward on the appeal. Examination of said specially requested issues reveals that they either presented no more than evidentiary issues upon the question of safe place to work or safe tools and equipment as related to the tires and tubes, found to have been defective in answers returned to Special Issues 1 and 2, or substantially submitted the same ultimate questions posed by these issues, along with Special Issue 2A. Even had the requested issues been given, once the question of proximate cause or proximate result (incident to the defective tires and/or tubes) was reached, the same ultimate question would have been embodied in the defective submission of Special Issue No. 2A. Special Issue No. 2A presented the ultimate question, albeit defectively. There would be no error warranting reversal because of the refusal of an issue which properly presents the ultimate question when an improper or defective issue purportedly posing the same ultimate issue is actually given, unless a good and sufficient objection is actually made to the issue which is given. Reversibility lies in the giving of such an issue--not in the refusal to give an additional issue when there has been no withdrawal of the defective issue which is given, for a request for another and different charge is not a substitute for an objection which is insufficient or absent and does not properly call error to the attention of the court. Naylor v. Lack, Tex.Civ.App., Dallas 1951, 243 S.W.2d 240; Southwestern Settlement & Development Corp. v. State, Tex.Civ.App., Beaumont 1955, 282 S.W.2d 78, writ refused n. r. e.
The same thing would be true as to the trial court's refusal to give a specially requested instruction to the jury concerning the obligation of an employer in an F. E. L. A. case in furnishing its employee with safe tools or other equipment, etc., with which to do and perform his work. The 'equipment' (which in this instance would be the tires and/or tubes) was found to have been defective, but in answer to the issue conditionally submitting the question of proximate cause the jury refused to find for the plaintiff. Plaintiff would not have been aided, under these circumstances, even had the specially requested instruction actually been given.
By one point of error plaintiff complains because of the submission of Special Issue No. 10, inquiring whether plaintiff voluntarily...
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