Davis v. Hill

• Decision Date: 13 January 1927
• Docket Number: (No. 431.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 291 S.W. 681
• Parties: DAVIS, Agent, v. HILL et al.
• Court: Texas Court of Appeals

Page 681

291 S.W. 681

DAVIS, Agent, v. HILL et al.

(No. 431.)^*

Court of Civil Appeals of Texas. Waco.

January 13, 1927.

Rehearing Denied February 24, 1927.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Action by Mrs. Alda Hill and others originally instituted against Walker D. Hines, then Director General of Railroads, for whom one Payne, Agent, was substituted, and James C. Davis, Agent, was substituted for Payne. From a judgment for plaintiffs, defendant appeals. Affirmed.

Terry, Cavin & Mills, of Galveston, and Nat Harris, of Waco, for appellant.

Tom M. Hamilton and J. A. Kibler, both of Waco, for appellees.

STANFORD, J.

This suit was instituted August 20, 1919, by appellee Alda Hill against Walker D. Hines, then Director General of Railroads, and the Gulf, Colorado & Santa Fé Railway Company, for the recovery of damages resulting from the alleged negligence of the Director General while engaged in operating the Gulf, Colorado & Santa Fé Railway Company, in causing the death of her husband, G. E. Hill. Appellee later filed her amended petition, in which she prosecuted the suit for herself and for the use and benefit of J. D. Hill and M. E. Hill, father and mother of G. E. Hill, deceased. In the meantime, Payne, Agent, was substituted in lieu of Walker D. Hines, and the Gulf, Colorado & Santa Fé Railway Company was dismissed from the case. The first three trials resulted in hung juries. The fourth trial resulted in a judgment for Alda Hill for $12,500 and $500 in favor of the father and mother. Appeal was taken to the Court of Civil Appeals, Third District, and said cause reversed and remanded for another trial. Payne v. Hill (Tex. Civ. App.) 242 S. W. 302. James C. Davis, Agent, was substituted for Payne. When the case was again called for trial, a plea in abatement was sustained, from which action of the trial court the case was again appealed, and reversed and remanded. Hill v. Davis (Tex. Civ. App.) 257 S. W. 340. Upon another trial, judgment was rendered in favor of appellee Alda Hill for $6,500, but against the father and mother, J. D. Hill and M. E. Hill, denying to them any recovery. The case was again appealed, and the judgment, as between appellant and appellee, was again reversed and remanded for another trial, but the said judgment as between the appellant and J. D. Hill and M. E. Hill, they not having appealed, was affirmed. Davis v. Alda Hill et al. (Tex. Civ. App.) 272 S. W. 291. Upon the last trial, in response to special issues, the jury found as follows:

"(1) The deceased, G. E. Hill, was injured by being struck by one of defendant's cars at the place where Schaffer street intersects defendant's railway tracks.

"(2) That the agents, servants, and employés of the defendant did suddenly start and move a string of cars over the public crossing at Schaffer street against the deceased, G. E. Hill, on the occasion in question, without giving any alarm or notice of the moving of said cars.

"(3) That such acts and omissions were negligence, as that term has been herein defined, on the part of the agents, servants, and employés of the defendant.

"(4) That such negligence was the proximate cause of the injuries and death of the plaintiff's husband, G. E. Hill.

"(5) That, at the time plaintiff's husband was injured, he was not a trespasser down in the yards of the defendant, among its tracks and away from any public thoroughfare, street, or passageway.

"(6) That at the time plaintiff's husband was injured he was not lying down under one of the defendant's cars among its tracks and trains, away from a public thoroughfare, street, or passageway over its tracks.

"(7) If paid now, the reasonable amount necessary to compensate plaintiff for the pecuniary loss she has sustained by reason of the death of her husband is $8,000."

Upon such findings of the jury, the trial court entered judgment for appellee for $8,000.

Under appellant's fourth assignment, the contention is made that the court erred in failing to charge on the burden of proof; appellant having objected to said charge on said ground, and the evidence of negligence being slight. That G. E. Hill was run over and killed by a string of freight cars being operated by appellant is not denied. There were two theories as to how the injury occurred; appellee contending that there was a string of cars with the end of said cars extending up to the sidewalk, if there had been one, along the south line of Schaffer street, a public thoroughfare running east and west across appellant's tracks, and that, while the deceased was walking along the south line of Schaffer street crossing said tracks, and while near the end of said cars, appellant's employés, without giving any signal or alarm, struck the south end of said string of cars, and shoved them against deceased, knocking him down, running over him, and inflicting the injuries resulting in his death. Appellant contends the injury was not inflicted at or near the Schaffer street crossing, but that the deceased had gone down south of Schaffer street some 540 feet in appellant's south yards, among the tracks, trains, and cars standing on said tracks, and away from any public street or passageway over said tracks, and had lain down under one of the box cars standing on one of the tracks and gone to sleep, and that deceased was guilty of negligence in so doing and that but for such negligence the deceased would not have been injured. The witness King, as disclosed by the record, was the only witness who claimed to have seen the accident, and it was on his evidence, corroborated by some circumstances, that appellee based her right to a recovery. Appellant made a very strenuous effort in various ways to discredit the witness King and to show that his evidence was false. The jury answered the first four special issues in the affirmative, which were findings that the injury occurred at the Schaffer street crossing, as testified by witness King. These findings necessarily negatived appellant's theory, involved in the fifth and sixth special issues, that the deceased's injury resulted from his own negligence; and likewise an affirmative finding to the fifth and sixth issues would have necessarily negatived appellee's theory, involved in the first four special issues. However, the jury found, not only that the injury occurred as contended by appellee and as testified by King, but also that it did not occur as contended by appellant.

The case being submitted on special issues and the controlling issue in the case dependent upon whether or not the jury believed the evidence of King, the important question was the credibility of said witness, for, if they believed his evidence, the burden of proof was necessarily sustained by appellee, and, if not, the findings would necessarily have been for appellant. There was no more reason to charge on the burden of proof in respect to the issues submitting appellee's theory of the case than there was in submitting appellant's theory. A charge on the burden of proof is not necessary or proper in every case. The propriety of such charge depends on the state of the evidence. Stooksbury v. Swan, 85 Tex. 563, 22 S. W. 963; T. & N. O. R. Co. v. Syfan (Tex. Civ. App.) 43 S. W. 551; Chittim et al. v. Martinez, 94 Tex. 141, 58 S. W. 948; St. Louis S. W. Ry. v. Preston (Tex. Com. App.) 228 S. W. 928. Under the condition of the evidence in this case and the manner of the submission, we do not think a charge upon the burden of proof was necessary, but, if a charge on the burden of proof was proper, as no charge on the subject was requested by appellant, he cannot be heard to complain. If the charge as prepared by the court had been affirmatively erroneous, and appellant by objections had pointed out such affirmative errors, this would have been sufficient to raise the question and require this court to consider such affirmative error, but, where the charge is correct as far as it goes, as in this case, but fails to charge on a certain phase of the case, or to submit an issue made by the evidence, it is necessary, in order to raise such question, that a special charge be requested covering the phase of the case omitted or the special issue which the court failed to submit. Gulf, C. & S. F. R. Co. v. Conley et ux., 113 Tex. 472, 260 S. W 561, 32 A. L. R. 1183; Texarkana & Ft. Smith R. Co. v. Smith (Tex. Civ. App.) 270 S. W. 871; Modern Woodmen v. Yanowsky (Tex. Civ. App.) 187 S. W. 728; Kansas City, M. & O. R. v. Russell (Tex. Civ. App.) 184 S. W. 299; Dancey v. Peyton et al. (Tex. Civ. App.) 282 S. W. 819; St. Louis S. W. R. Co. v. Preston, supra; El Paso Printing Co. v. Glick (Tex. Com. App.) 263 S. W. 260. There is no error shown here — at most, no reversible error. This assignment is overruled.

Under appellant's ninth assignment, the contention is made that the court erred in admitting, over appellant's objection, the testimony of J. L. McAtee for the purpose of impeaching the witness Mrs. Ferguson. The record discloses the witness Mrs. Ferguson testified on the several previous trials of the case, and on the trial before the last testified to a material fact which appellee contended she had never testified to before, and, to lay a predicate for impeachment, appellee's counsel asked her if it was not a fact she had not testified to such fact in any of the former trials, and the witness affirmed she had testified to said fact on each of the former trials. After J. L. McAtee, the official court reporter who reported all of the former trials, had refreshed his memory from his shorthand notes of all the former trials, he was permitted, over appellant's objection, to testify that this witness on none of the other trials had testified to said material fact. The court instructed the jury at the time said testimony was admitted that it was admitted for impeachment purposes only. There was no error in admitting this evidence. This assignment is overruled.

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