Edmiston v. Texas & N. O. R. Co., 1807-7387.

• Decision Date: 27 March 1940
• Docket Number: No. 1807-7387.,1807-7387.
• Citation: 138 S.W.2d 526
• Parties: EDMISTON v. TEXAS & N. O. R. CO.
• Court: Texas Supreme Court

Page 526

138 S.W.2d 526

EDMISTON v. TEXAS & N. O. R. CO.

No. 1807-7387.

Commission of Appeals of Texas, Section B.

March 27, 1940.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by A. J. Edmiston against the Texas & New Orleans Railroad Company for damages for injuries suffered by plaintiff's wife, who was riding as a guest in an automobile which was in a collision with defendant's switch engine. To review a judgment of the Court of Civil Appeals, 111 S.W.2d 848, affirming a judgment of the district court for the defendant, the plaintiff brings error.

Reversed and remanded to the district court.

Polk Shelton, Emmett Shelton, and Everett L. Looney, all of Austin, for plaintiff in error.

Baker, Botts, Andrews & Wharton, of Houston, and Smith, Goldsmith, Adams & Bagby, of Austin, for defendant in error.

SMEDLEY, Commissioner.

Plaintiff in error sued defendant in error, the railroad company, for damages on account of injuries suffered by his wife, who was riding as a guest in an automobile which struck, or was struck by, defendant in error's switch engine at a crossing of the railroad track with a public street in the city of Austin.

The jury, in answer to special issues, found that employes of the railroad company, who operated the switch engine, were negligent in several particulars alleged and that each of such negligent acts was a proximate cause of the injury to Mrs. Edmiston. With respect to alleged acts of contributory negligence on the part of Mrs. Edmiston, the jury made the following findings: That Cecil Ramos, the driver of the automobile, was driving immediately before the collision at a rate of speed in excess of twenty miles per hour; that his action in driving at that rate of speed was a proximate cause of the collision; that Mrs. Edmiston failed to make any protest or otherwise attempt to persuade Ramos to reduce the speed of the automobile; but that such failure on her part was not negligence; that the whistle of the engine was blown before it reached the crossing; that Mrs. Edmiston, by the exercise of ordinary care, could have heard the whistle; that Mrs. Edmiston failed to call the attention of Ramos to the whistle; but that such failure on her part was not negligence; that the rear headlight on the switch engine was burning as the engine, which was backing, approached the place of collision; that Mrs. Edmiston, by the exercise of ordinary care, could have seen the burning headlight; that Mrs. Edmiston failed to call the attention of Ramos to the burning headlight; but that her failure to do so was not negligence; that Mrs. Edmiston, by the exercise of ordinary care, could have seen the switch engine as it approached the crossing in time to have warned Ramos; that Mrs. Edmiston failed to call to the attention of Ramos the fact that the engine was approaching the crossing; but that such failure on the part of Mrs. Edmiston was not negligence; that Mrs. Edmiston failed to listen, watch and look out for trains and engines as the automobile approached the railroad track; but that such failure on her part was not negligence.

Plaintiff in error filed a motion for judgment on the verdict. Defendant in error, the railroad company, filed no motion for judgment. It did not by motion ask for the rendition of judgment in its favor either on the verdict or notwithstanding the verdict, and it filed no motion requesting the court in the rendition of judgment to disregard any of the special issue findings as not supported by evidence. The trial court overruled plaintiff in error's motion for judgment and rendered judgment that plaintiff in error take nothing by his suit, the judgment containing the recital of the court's opinion that the defendant in error was entitled to a judgment upon the verdict.

The Court of Civil Appeals affirmed the trial court's judgment, holding that the evidence showed that Mrs. Edmiston was guilty of contributory negligence as a matter of law, and that no issue other than that of discovered peril should have been submitted to the jury, and that, the jury having determined the issue of discovered peril in favor of the railroad company, the question whether the trial court could have rendered judgment non obstante veredicto without written motion by the railroad company and notice and hearing thereon, as required by amended article 2211 of the Revised Civil Statutes, Vernon's Ann.Civ. St. art. 2211, "[was] not material." 111 S.W.2d 848, 849.

As we understand the ruling of the Court of Civil Appeals with respect to amended article 2211, it is that, although the jury found by its answers to special issues that Mrs. Edmiston was not guilty of contributory negligence as alleged by the railroad company, the trial court, without the filing of a motion in accordance with the requirements of amended article 2211, had the authority to disregard such findings of the jury and to render judgment that plaintiff in error take nothing—this for the reason that the evidence, in the opinion of the Court of Civil Appeals, showed as a matter of law that Mrs. Edmiston was guilty of contributory negligence.

This ruling, in our opinion, is contrary to the intention and meaning of the provisions which were added to article 2211 by amendment in 1931 and which are as follows: "Provided, that upon motion and reasonable notice the Court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence." Chapter 77, Acts Regular Session, 42nd Legislature.

As is pointed out by Judge German in the opinion in Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970, 971, prior to the amendment of article 2211, "it was definitely settled that by virtue of article 2209 of the Revised Statutes of 1925, a trial court was without authority to set aside a jury's finding to an issue raised by the pleadings, even though such finding was against the undisputed proof or was without evidence to support it." See Waller v. Liles, 96 Tex. 21 70 S.W. 17; Massie v. Hutcheson, Tex.Com.App., 270 S.W. 544. Quoting further from the opinion in Hines v. Parks, supra: "The amendment of 1931 was intended to obviate the apparent harshness of this rule, and to permit the disregarding of a special issue finding which had no support in the evidence. It is obvious, however, that even now in a case where there is a finding of a jury to a special issue which is raised by the pleading, the only authority which the court has to disregard such finding is that given by the statute; and, of course, as the right is conferred by the statute, it can be exercised only in the manner and under the circumstances prescribed by the statute."

The issues submitted to the jury, as to acts of contributory negligence on the part of Mrs. Edmiston, were issues raised by the pleadings. They were issues which were under the pleadings material to the decision of the case. If there was no evidence sufficient to warrant the submission of these issues to the jury or if the...