Fort Worth & D. C. Ry. Co. v. Rowe

• Decision Date: 14 March 1934
• Docket Number: No. 4167.,4167.
• Citation: 69 S.W.2d 169
• Parties: FORT WORTH & D. C. RY. CO. v. ROWE et al.
• Court: Texas Court of Appeals

69 S.W.2d 169

FORT WORTH & D. C. RY. CO. v. ROWE et al.

No. 4167.

Court of Civil Appeals of Texas. Amarillo.

March 14, 1934.

Appeal from District Court, Potter County; W. E. Gee, Judge.

Suit by Gertrude Rowe, administratrix, and others against the Fort Worth & Denver City Railway Company. From a judgment in favor of plaintiffs, defendant appeals.

Reversed and remanded.

Morgan, Culton, Morgan & Britain, of Amarillo, and Thompson & Barwise, of Fort Worth, for appellant.

Clayton & Bralley and Works & Bassett, all

MARTIN, Justice.

James Rowe was a switchman in the employment of appellant. About 8 o'clock p. m., on February 17, 1932, while on duty as such switchman, he received injuries from which he later died. At the time of such injuries he was standing on the back end of a tender attached to a switch engine, and as same was backing across Buchanan street he was struck by an automobile driven by one Willis Hill, breaking both of his legs. After his death his wife, Gertrude Rowe and appellee herein, brought suit against appellant individually and as next friend for her two minor daughters and as administratrix of the estate of said Rowe, alleging in substance the existence of the facts already mentioned, and further alleging:

"That said automobile was being driven by one Willis Hill along the west side and portion of said street in its proper position and at a reasonably safe rate of speed, said Hill having said car under his control and, as plaintiff understands and alleges the facts to be, said Hill approached said railroad crossing with due caution, both looking and listening for the approach of engines, cars or trains * * *.

"That said collision and the damages hereinafter shown proximately resulted from defendant's negligence through its said flagman, Williamson, in that he did not give warning to said Hill of the approach of said engine to said crossing and did not signal said Hill with his said lantern, or otherwise, to stop said automobile without attempting to cross said track while said engine was so approaching with deceased thereon as was his duty under the circumstances, until it was too late for said collision to be avoided, both to said Hill and deceased, and defendant's failure to discharge said duty was negligence and a proximate or a proximately contributing cause of all of the damages herein shown, it being further shown in this connection that deceased and said Hill had the right to expect and rely upon said Williamson to give warning of the approach of an engine or train to said crossing by signaling with said lantern and the light thereof, or by some other signal of warning that could be seen by said Hill, all of which said Williamson failed to do and which was negligence on the part of defendant under the circumstances."

The remainder of her petition contains the usual averments in cases of this character, not necessary here to mention.

To this petition the appellant filed a general denial and alleged specially that at the time the deceased Rowe received his injuries, appellant and said Rowe were engaged in interstate commerce and that this case is one covered by the Federal Employers' Liability Act and the amendments thereto (45 USCA §§ 51-59) and specially pleaded facts claimed to show the defense of contributory negligence and assumed risk, and further specially alleged:

"That in truth and in fact the injuries received by the deceased were occasioned by the conduct and actions of a party in no way connected with this defendant, and for whose conduct this defendant is not responsible, as will be fully developed on the trial of this case; * * *

"That the accident in this case was occasioned solely and only by the wild and reckless conduct of the driver of an automobile on the crossing in question, as will be fully and completely developed on the trial hereof."

As a background for the legal issues discussed, we here state so much of the evidence as illustrates the immediate facts surrounding the accident, and particularly some of the facts which it is claimed raise the issue that the act of Willis Hill was the sole cause of the accident. Since we regard the testimony as ample, if believed, to show negligence on the part of the appellant, we will not consume space in its detailed reproduction.

Shortly prior to the accident, the regular passenger train from Fort Worth to Denver had just come into the station. A switch engine had just coupled with the pullman on said train and was slowly backing with same easterly toward Buchanan street. This street runs north and south just east of appellant's depot and is paved to a width of 49 feet. Street lights were at the intersection of this street on both the north and south sides of appellant's right of way and said lights were burning at the time. Deceased Rowe was on the footboard of the tender attached to said switch engine. Willis Hill was coming south on Buchanan street in an automobile. Some of the witnesses place his speed at 25 or 30 miles an hour as he crossed the Rock Island tracks located about 260 feet north of the place of the accident. The engineer on the switch engine placed his speed at 25 to 40 miles an hour just before the collision. Williamson, flagman for appellant, whose duties were to watch the crossing and give signals of any danger, testified, in part, that he was on duty; that he saw Hill approaching; that he waved his lantern at him; that Hill came right on and that he had to dodge out of his way to keep from being struck and that Hill swerved to his right and struck the tender near the point where Rowe was located and which at the time appears to have been just at the western edge of Buchanan street. That he holloed at Hill. Other witnesses saw Rowe swinging his lantern just before the accident, and one witness testified that Hill's car, after the accident, was standing at an angle of about 45° with the rear wheels about 4 feet west off the west edge of the paving on Buchanan street. The deceased Rowe made this statement, after the accident: "It is pretty tough luck to have both of my legs broke, but if he had not, this party driving the automobile, drove around off the pavement and struck me, he would have killed old Jessie, that is, the crossing flagman." His statement to the flagman was: "He told me that I was not responsible for it. I was at my place of duty and he did not hold me responsible for nothing." It further appears that the automatic bell was ringing at the time and that the whistle had blown for the crossing and that the lights of the engine were on and that it was going very slowly, perhaps some 4 or 5 miles an hour.

The case was submitted upon special issues, and all of these being answered favorably to the appellee, judgment was rendered by the trial court against appellant for the gross sum of $17,000.

It is obvious from the above that the major controversy between the parties in the lower court centered around the issue of who proximately caused the injury to deceased Rowe. Here we have the same controversy, arising out of the alleged failure of the trial court to properly submit this important issue to the jury. This was the most vital fact issue in the trial court, and out of it arises the major legal issue for our determination.

In disposing of it, no useful purpose can be served by quoting and replying seriatim to the respective contentions of the parties to this appeal, contained in lengthy original and reply briefs. Rather we think a general statement of the law of this case will sufficiently answer these, without their tedious repetition.

Nor do we think it profitable to enter into any extended discussion of the legal meaning and precise application of the term "proximate cause," a phrase already clouded by evanescent reasoning and subtle distinctions. As has been said, and correctly we think: "Theorize as we may on the subject of proximate cause, it is in its last analysis a question of good common sense, to be solved by a practical consideration of the evidence in each particular case." Childs v. Standard Oil Co., 149 Minn. 166, 182 N. W. 1000, 1001. And as said in another case, it has always been found difficult when sought to be applied "to a state of facts presenting more than one contributing cause or act that resulted in the wrong or injury complained of." City of Louisville v. Hart's Adm'r, 143 Ky. 171, 136 S. W. 212, 215, 35 L. R. A. (N. S.) 207.

All judicial minds will agree, we think, on the simple statement that one person may not be held liable for damages caused solely by the act of another over whom he has no control. This is only the statement of a self-evident truth, but to be judicially orthodox, we quote: "A master is not as a rule liable for injuries to his servant caused by the act or omissions of third persons over whom he has no control." 39 C. J. 291; Texarkana, etc., R. Co. v. La Velle (Tex. Civ. App.) 260 S. W. 248; Thompson v. Galveston, etc., R. Co., 48 Tex. Civ. App. 284, 106 S. W. 910. In the present case this vital issue was submitted only in the following language:

"Special Issue No. 5.

"(a) Was the failure of Willis Hill to avoid the collision between his automobile and the engine upon which James C. A. Rowe was riding on the occasion in question, negligence upon the part of said Hill? Answer Yes or No.

"(b) If so, was such negligence, if any, upon the part of said Hill the sole proximate cause of the injuries received by said Rowe on the occasion in question? Answer Yes or No."

The first subdivision was answered, "No," and the second, by the court's instruction presumably, was not answered by the jury. The language into which said issue No. 5 was cast, amounted, in practical effect, to a denial, in our opinion, of any submission of the real defense made by the pleading and proof in behalf of appellant to the effect that Willis Hill's act was the sole cause of the injury to Rowe. This we shall now attempt to demonstrate. It will be...