Colorado & S. Ry. Co. v. Rowe

• Decision Date: 22 March 1922
• Docket Number: (No. 292-3555.)
• Citation: 238 S.W. 908
• Parties: COLORADO & S. RY. CO. v. ROWE.
• Court: Texas Supreme Court

Page 908

238 S.W. 908

COLORADO & S. RY. CO. v. ROWE.

(No. 292-3555.)

Commission of Appeals of Texas, Section B.

March 22, 1922.

Appeal from Court of Civil Appeals of Seventh Supreme Judicial District.

Action by Ada Rowe against Colorado & Southern Railway Company. In a former trial, after a peremptory instruction for defendant, the cause was reversed and remanded by the Court of Civil Appeals. From judgment for plaintiff, defendant appealed to the Court of Civil Appeals, where the judgment was affirmed (224 S. W. 928), and from this judgment, defendant appeals. Reversed and remanded.

E. E. Whitted, of Denver, Colo., Turner & Dooley, of Amarillo, Thompson, Barwise, Wharton & Hiner, of Fort Worth, and Black & Smedley, of Austin, for appellant.

Wm. H. Childers, C. B. Reeder, and L. C. Barrett, all of Amarillo, for appellee.

HAMILTON, J.

We adopt the statement of the case made by the Court of Civil Appeals, as follows:

"Appellee, as administratrix, and for the benefit of herself and two minor children, brought this suit against the Colorado & Southern Railway Company and the Fort Worth & Denver City Railway Company, to recover damages under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) for the death of her husband, Edgar Rowe. The said railway companies were sued as partners, but there was a peremptory instruction for the Fort Worth & Denver City Railway Company; and, as no question arises in connection with its elimination from the case, we need refer no further to the allegations that attempted to make it liable with the appellant company. The plaintiff alleged in her petition that, on June 15, 1916, the said Edgar Rowe was in the employ of the appellant company as brakeman on a freight train running from Trinidad, Colo., to Texline, Tex.; that while said train was traveling at a rapid rate of speed one of the bottom doors of one of the cars in the train dropped open and dumped a large amount of coal on the track under the cars; that the said Rowe was at the time engaged in his duties on the train on one of the cars near said coal car, and was caused to fall from the train, and was run over and killed; that no one saw the said Rowe at the exact moment, so that plaintiff cannot set out the exact manner in which he was killed, but alleges that the falling of the coal on the track caused the air hose of the train to uncouple, setting the brakes suddenly and unexpectedly, and so jarred and shook the train that it contributed to, and was one of, the causes of the said Edgar Rowe's fall; that said coal falling from said car bounced and struck the said Edgar Rowe, which also contributed to his fall; that the cars were jolted by running over said coal on said track, and this fact contributed to cause said Rowe to fall from said car; that a great dust was caused to arise from the coal falling on the track, which blinded and choked the said Rowe, and also contributed to his said fall; `that each and every thing herein alleged was the proximate cause of his said fall, and that all, taken together, was the proximate cause of said fall and said killing'; that the door of said car was insecurely fastened; and that it was negligence on the part of the defendant to use said car and transport the same in a train in such condition. Defendant answered by exceptions, general denial, and pleas of assumed risk, and contributory negligence."

The case was submitted on special issues of fact upon answers to which, by the jury, the court rendered judgment in favor of plaintiff for $15,000 apportioned among the plaintiff and the two children. Defendant appealed and the Court of Civil Appeals affirmed the judgment of the district court. 224 S. W. 928.

The case was tried once before, a peremptory instruction for the railroad company given, appealed to the Court of Civil Appeals, and reversed and remanded. 205 S. W. 731.

The first assignment of error contends that the Court of Civil Appeals erred in holding that the trial court did not err in failing to submit to the jury the issue of fact as to whether the deceased, Edgar Rowe, was killed as the result of an accident, requested by plaintiff in error. The Court of Civil Appeals found that the issue of accident was raised by the evidence and in its opinion, concerning this matter said:

"In the original opinion we expressed a doubt as to whether the evidence was sufficient to raise the issue of accident, and the appellant complains of our failure to make an affirmative finding on this matter. We think the appellant is entitled to such a finding, and after a review of the evidence have concluded that it is sufficient to raise the issue of accident in this way. The engineer of the train testified that the coal dumped about a mile back of where Rowe fell, and had all `rolled out up to the point where he fell.' This evidence is not in accord with that of other witnesses, but the defendant, of course, would have the right to have the jury pass on its truth. The tendency of the evidence of this witness was to show that the dumping of the coal, which was the immediate result of the only negligence charged against the defendant, had no connection with the fall of the deceased, and to show that such fall was the result of some other cause. There is a presumption, of course, against the existence of any negligence on the part of the deceased, which may have caused him to fall, and we have held, and still adhere to that ruling, that the evidence does not raise an issue of negligence on Rowe's part. This evidence and the presumptions thus tending to eliminate other causes for the fall, the only one remaining to account for it is that of accident, and this theory is compatible with the other facts, being sufficient to account for the separation of the train and the air hose," etc.

But that court held that, notwithstanding the issue was presented by the evidence, it was "merely a negative of the issue submitted as to whether the negligence of the defendant was the proximate cause of the deceased falling from the train," and should not have been submitted. That it is error to refuse to submit the issue of accident, as distinguished from contributory negligence, when raised by the evidence, under a general charge, is the law of this state as declared by our Supreme Court. G. H. & S. A. Ry. Co. v. Washington, 94 Tex. 510, 63 S. W. 534.

In that case, plaintiff sought damages for injuries alleged to have been negligently caused by a passing train. On the trial of the case in the court below, plaintiff testified, in substance, that he was injured in the manner and under the circumstances alleged in the petition, and his statement as to how the accident occurred was corroborated by several other witnesses. There was evidence in the case to the effect that the boy was injured while attempting to get upon defendant's moving train. It was also shown that said plaintiff made and signed a written statement of the circumstances under which he was injured, and had also testified by deposition previously taken in the case that the accident occurred in the manner set out in the written statement, which is as follows:

"On the day I was injured, I was coming home from church and walking up the railroad track, when I heard a train coming from Chaney Junction toward the Fifth Ward Depot. I stepped off the track and stood beside the passing train. Just as the last box car was passing me, I stepped close to the train, and as I did so my foot struck against something in the street and I fell and my feet went under the box car and it cut both my feet off."

The court, in his main charge, instructed the jury fully on negligence and contributory negligence but did not instruct it on unavoidable accident. Defendant requested, and the court refused to submit to the jury the following special charge:

"You are instructed that, if you find from the evidence that the plaintiff was near the track of the defendant company waiting for its train to pass, and that while said train was passing by, plaintiff stumbled or fell so that his feet were run over and mashed by one or more cars of said train, then you will return your verdict in favor of the defendant."

A verdict and judgment was rendered in the trial court in favor of the plaintiff, and the Court of Civil Appeals found that the evidence was sufficient to sustain the verdict and that the judgment should be affirmed, unless the refusal of the court to give the requested instruction required its reversal, and certified to the Supreme Court for its decision the question:

"Was the refusal of the court below to give said requested instruction such error as requires a reversal of its judgment?"

The Supreme Court answered:

"We think the requested instruction should have been given, and the trial court erred in refusing same. The issue of unavoidable accident was clearly raised by this evidence, and such issue was not submitted to the jury by the court in his main charge. The defendant was not required to specially plead that the injury was the result of an unavoidable accident to entitle it to have such issue submitted to the jury. The evidence was not only admissible for the purpose of contradicting the witness James Washington, but as a substantial defense under the general issues, and, if believed by the jury, it would have been a complete defense to the suit. Altgelt v. Emilienburg, 64 Tex. 150; Willis v. Hudson, 63 Tex. 681; Winn v. Gilmer, 81 Tex. 346, 16 S. W. 1058.

"The statement by James Washington was admissible to prove that the injury did not occur in the manner alleged in the plaintiff's petition, and, if believed to be true, would have furnished a defense to the plaintiff's action, although it might not have been an unavoidable accident. The special charge which was requested and refused would have presented both phases of the defense. These defenses were in no way connected with that of contributory negligence, pleaded by the...