Burlington-Rock Island R. Co. v. Whitmire, 2635.

• Decision Date: 15 March 1945
• Docket Number: No. 2635.,2635.
• Citation: 186 S.W.2d 296
• Parties: BURLINGTON-ROCK ISLAND R. CO. v. WHITMIRE.
• Court: Texas Court of Appeals

186 S.W.2d 296

BURLINGTON-ROCK ISLAND R. CO. v. WHITMIRE.

No. 2635.

Court of Civil Appeals of Texas. Waco.

March 15, 1945.

Appeal from Madison County Court; Wiley N. Coleman, Judge.

Action by J. E. Whitmire against Burlington-Rock Island Railroad Company for damages for the death of a cow. From an adverse judgment, defendant appeals.

Affirmed.

Bennett & Bennett, of Normangee, and Barwise & Wallace, of Fort Worth, for appellant.

Allen H. Menefee, of Madisonville, for appellee.

HALE, Justice.

This is a damage suit. It originated in the Justice of the Peace Court. Appellee alleged in substance that appellant's freight train struck and killed his cow in the town of North Zulch on May 6, 1944, to his damage in the sum of $115. He further alleged as grounds for the recovery sought that appellant's agents, servants and employees were negligent in the operation of the train on the occasion in question in that (1) they failed to maintain a proper lookout, or (2) to sound the whistle or (3) to ring the bell on the locomotive as required by law, and (4) they were operating the train at an excessive rate of speed under the existing circumstances; and that each act of negligence aforesaid was a proximate cause of the injury and damages complained of. Appellant answered with a general denial and a plea of contributory negligence.

From an adverse judgment in the Justice of the Peace Court the Railroad Company appealed to the County Court, where the case was tried de novo before a jury on the original pleadings. In response to special issues, the jury found the facts to be as alleged by appellee. Thereupon, the County Court rendered judgment for appellee and the Railroad Company has appealed to this Court.

Appellant says the judgment should be reversed because there was no evidence of actionable negligence on its part and hence the trial court erred in overruling its seasonable request for a peremptory instruction and in submitting to the jury over its timely objections each of the four grounds of negligence and proximate cause relied upon for a recovery. In our opinion, if there was no evidence tending to raise any of the grounds of negligence and proximate cause submitted, then the judgment of the trial court should be reversed; but if there was sufficient evidence to raise any one of the four grounds upon which the recovery was based, then the judgment should be affirmed.

Appellant admits in its brief that appellee's cow was struck by one of its trains in the town of North Zulch within the switch limits near a street crossing where its right-of-way was not fenced; that its train was being operated at the time and place in question at a speed of approximately 50 miles per hour; that the cow was struck south of a box car spotted on a side track; and that the...