Ft. Worth & R. G. Ry. Co. v. Kime

• Decision Date: 21 December 1899
• Court: Texas Supreme Court
• Parties: FT. WORTH & R. G. RY. CO. v. KIME et al.

Page 240

54 S.W. 240

FT. WORTH & R. G. RY. CO. v. KIME et al.

Supreme Court of Texas.

December 21, 1899.

Error from court of civil appeals of Second supreme judicial district.

Action by Mattie Kime and others against the Ft. Worth & Rio Grande Railway Company. From a judgment of the court of civil appeals (51 S. W. 558) affirming a judgment for plaintiffs, defendant brings error. Affirmed.

Newton H. Lassiter, for plaintiff in error. J. H. Barwise, Jr., H. W. Kuteman, and J. T. Montgomery, for defendants in error.

WILLIAMS, J.

Defendant in error recovered judgment in the district court for damages for the death of her husband, which on appeal was affirmed by the court of civil appeals. This writ of error was granted upon the assignment that there was not sufficient evidence that the death was caused by the alleged negligence of the plaintiff in error to support a judgment. The plaintiff claimed that her husband was killed, at his station as brakeman on the top of a moving freight train, by coming in contact with a bridge that overhung the track; the negligence of the defendant being alleged to have consisted in its failure to warn the deceased, a new employé, of the danger resulting to brakemen from the position of the bridge. The evidence relied on to prove the fact that the death was caused by contact with the bridge was wholly circumstantial, and far from conclusive. In acting upon the application, we were impressed with the view that the circumstances adduced were as consistent with the hypothesis that the death resulted from other causes as that it was caused in the manner alleged, and that in such a state of the case the question as to the right of recovery became one of law, upon which this court could act. But, when carefully considered, the facts do tend to show that the cause of the death was the fact alleged, and are sufficient to require the trial judge to submit the question to the jury, and therefore to remove it beyond the jurisdiction of this court, since we can only pass upon questions of law. It can only be said, as matter of law, that the right of recovery is not shown when there is clearly no evidence of the fact upon which the right depends, sufficient to raise in a rational mind more than a surmise of its existence. Joske v. Irvine, 91 Tex. 582, 44 S. W. 1059. We cannot say this with regard to the evidence in the record, and hence must affirm the judgment, as no error is shown in the proceedings. Affirmed.