Erisman v. Thompson

• Decision Date: 06 January 1943
• Docket Number: No. 7950.,7950.
• Citation: 167 S.W.2d 731
• Parties: ERISMAN v. THOMPSON.
• Court: Texas Supreme Court

167 S.W.2d 731

ERISMAN v. THOMPSON.

No. 7950.

Supreme Court of Texas.

January 6, 1943.

Rehearing Denied February 10, 1943.

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

Action by Velma J. Erisman against Guy A. Thompson, trustee, for International-Great Northern Railroad Company, for personal injuries. Judgment for plaintiff was reversed by the Court of Civil Appeals, 157 S.W.2d 439, and plaintiff brings error.

Judgment of Court of Civil Appeals affirmed.

Stewart & Barron and W. S. Barron, all of Bryan, and Collins, Williams & Garrison, of Lufkin, for appellant.

Andrews, Kelley, Kurth & Campbell, of Houston, F. L. Henderson, of Bryan, and Ben G. Sewell, J. Toll Underwood, and Sewell, Taylor, Morris & Connally, all of Houston, for appellee.

CRITZ, Justice.

This is a personal injury suit. It was filed in the District Court of Brazos County, Texas, by Miss Velma J. Erisman against Guy A. Thompson, in his official capacity as Trustee for International-Great Northern Railroad Company. Trial in the district court, with the aid of a jury, resulted in a verdict and judgment for Miss Erisman in the sum of $12,000. This judgment was reversed and this cause remanded for a new trial by the Court of Civil Appeals. 157 S.W.2d 439. Miss Erisman brings error. We shall hereinafter refer to Miss Erisman as plaintiff, and to Guy A. Thompson, Trustee, as defendant.

By her petition in the district court plaintiff alleged that she was driving an automobile along a public paved road in the daytime; that such road ran alongside the right of way of the defendant; that a wind was blowing in a direction from the railroad right of way toward and across the public road on which plaintiff was travelling; that the defendant had permitted its right of way to grow up in vegetation, such as weeds and grasses; that just before plaintiff was injured the servants, agents and employees of defendant set fire to the vegetation growing upon its right of way; that such vegetation was dry, and when set on fire made a very large fire; that a very dense smoke emanated from such fire; that such smoke was driven by the wind into, over, and across the public road along which plaintiff was driving; that such smoke was so dense that it made it impossible for the plaintiff to see cars approaching her from the opposite direction; that such smoke was so dense that the drivers of approaching cars could not see the plaintiff's car; that while plaintiff was driving on such road, under the circumstances above detailed, her car collided with a car travelling in the opposite direction, driven by one D. R. Vaughan; and that as a result of such collision plaintiff was very seriously injured.

As to the negligence of the defendant, the plaintiff's petition alleges that the defendant was guilty of negligence, which proximately caused her injuries, by its servants and employees "operating said train at a low rate of speed and bringing said train to a stop at frequent intervals, and intentionally ignited and set fire to the said vegetation growing on said right of way at many different points within said right of way and along said railroad; that said vegetation was so ignited, and set fire by the said agents, employees and servants of the defendant in the due course of their business and employment and for the purpose of ridding the said right of way of said vegetation. That the said vegetation on said right of way was set afire and ignited at some places by the said agents, employees and servants of the defendant throwing burning substances from said train and at other places by disembarking from said train and igniting such dry vegetation with matches or other instrumentalities. That the fires so set and started by such agents, servants and employees of the defendant quickly spread so as to consume and did consume the said dry and tinderlike vegetation, * * *." (Emphasis ours.)

Boiled down, the above-quoted portion of the plaintiff's petition alleges that the vegetation on the defendant's right of way was "intentionally" set afire in two ways: (a) by the servants, agents and employees of defendant throwing burning substances from the train into such vegetation, and (b) by such servants, agents and employees disembarking from the train and igniting such vegetation with burning matches or other instrumentalities.

We refer to the opinion of the Court of Civil Appeals for a very full and fair statement of the evidence offered at the trial, bearing on the question as to when and how the vegetation on defendant's right of way was set afire. It is sufficient, for the purposes of this opinion, to state that the plaintiff's evidence tended to show that the servants, agents and employees of the defendant set afire the vegetation in question in each of the two ways set out and specifically pleaded by the plaintiff.

The only issue submitted to the jury pertaining to the way the vegetation on defendant's right of way was set afire is contained in Special Issue No. 6 of the court's charge. Such issue reads as follows: "Do you find from a preponderance of the evidence that the agents, servants and employees of the defendant, on December 6, 1938, set afire the vegetation growing on the right of way of the defendant at and near the scene of the collision at the time and place in question?"

The jury answered the above issue, "Yes." Also, the jury found that the setting afire of the vegetation on defendant's right of way was negligence, and was the proximate cause of the plaintiff's injuries.

Defendant duly and seasonably excepted to Special Issue No. 6 on various grounds. We shall not attempt to set out or state all of such grounds. It is sufficient to say that this issue was excepted to on the ground that it eliminated the question of an intentional setting of the fire, and combined into one special issue a question of fact that defendant was entitled to have divided into two issues, one calling for a fact finding as to whether its agents, servants and employees set fire to the vegetation on its right of way, by throwing burning substances from the train therein, and one calling for a fact finding as to whether its agents, servants and employees set fire to such vegetation by disembarking from the train and igniting it with matches or other instrumentalities. Defendant further excepted to Special Issue No. 6 on the ground that it did not confine the jury in answering the same to the pleadings and proof regarding the way and manner the vegetation on defendant's right of way was set on fire, but permitted the jury to go outside the pleadings and proof and speculate as to how such vegetation was set on fire. The opinion of the Court of Civil Appeals holds that Special Issue No. 6 was defective in the particulars indicated by the above-stated exceptions. Plaintiff assigns such rulings as error in this Court. At this point we pause to note that this case was tried before the effective date of our new Texas Rules of Civil Procedure. We merely mention this fact to show that the decision of the question of law here involved must be determined by the provisions of Articles 2189 and 2190, R.C.S. 1925, Vernon's Ann.Civ.St. arts. 2189, 2190.

Under Article 2189 it is provided that the trial court "shall submit the cause upon special issues raised by the pleadings and the evidence in the case. Such special issues shall be submitted distinctly and separately. Each issue shall be answered * * * separately." Under Article 2190 it is provided that the trial court, when he submits a case on special issues, "shall submit all the issues made by the pleading and the evidence." Both articles restrict the issues to be submitted to those raised by the pleadings and the evidence. The conjunctive conjunction "and" is used. An issue raised by the pleadings alone cannot be submitted, and likewise an issue raised by the evidence alone cannot be submitted. Under the plain language of the two statutes, before an issue can be submitted at all it must be raised by both "the pleading and the evidence."

Independent of the above statutes, pleadings determine the issues upon which parties go to trial, and it is not even proper to admit evidence unless it is addressed to or bears upon some issue...