Galveston, H. & S. A. Ry. Co. v. Sweeney

• Decision Date: 27 June 1896
• Citation: 36 S.W. 800
• Parties: GALVESTON, H. & S. A. RY. CO. v. SWEENEY.
• Court: Texas Court of Appeals

36 S.W. 800

GALVESTON, H. & S. A. RY. CO. v. SWEENEY.

Court of Civil Appeals of Texas.

June 27, 1896.

Appeal from district court, Medina county; Eugene Archer, Judge.

Action by Joseph J. Sweeney against the Galveston, Harrisburg & San Antonio Railway Company for personal injuries. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Upson, Bergstrom & Newton, for appellant. Perry J. Lewis and W. N. Parks, for appellee.

JAMES, C. J.

The opinion delivered by us in connection with our judgment of affirmance is not deemed complete, and will be withdrawn, and this opinion substituted in its place. The affirmance is adhered to for the reasons given herein, upon consideration of the appellant's brief and motion for rehearing.

The action is for damages for personal injuries. Plaintiff was appellant's conductor on a freight train going west from San Antonio. On leaving Dunlay station on a down grade, the train parted, leaving the caboose and two loaded flat cars behind. Some distance further on, the train parted again between the second and third cars from the engine, and the collision occurred by the rear section running into the middle one. The conductor, being at the time in the caboose, was injured. Verdict for $15,000.

Conclusions of Fact.

The testimony authorized the following findings: (1) That the coupling at the place where the first break occurred was defective, through negligence of defendant. (2) That there was no negligence on the part of plaintiff's fellow servants. (3) That if the jury had concluded there was negligence on the part of plaintiff's fellow servants contributory to or causing the collision, it was admissible for them to find that defendant's negligence concurred with that of the fellow servants in causing the accident. (4) That there was no contributory negligence on the part of plaintiff. (5) We conclude, further, that the verdict was not excessive.

Opinion.

The accident occurred before the recent act relating to fellow servants. All the assignments but one refer to the charges. The other assignment is that the verdict is not sustained by the evidence. The conclusions of fact dispose of this assignment.

The issues were the contributory negligence of plaintiff, the negligence of the engineer and brakeman, plaintiff's fellow servants; a prominent contention being that the negligence of the engineer was an independent and the proximate and sole cause of the injury, the defect in the coupling where the break first occurred being, it is claimed, too remote a cause to be responsible in any way for the collision. The court gave the following charge: "If, however, you believe from the evidence that the defendant was guilty of negligence under the charges given you; and if you also believe from the evidence that the fellow servants of plaintiff were also guilty of negligence; and if you further believe from the evidence that such negligence, if any, of the defendant and plaintiff's fellow servants, were concurring causes of plaintiff's injuries, and together were the direct cause of plaintiff's injuries, and that plaintiff did not contribute to his injuries,—then the defendant would be liable, and you will find a verdict for the plaintiff." The proposition embodied in this charge is a correct one, but it is strenuously insisted that the testimony did not warrant the submission of the issue of concurring causes. There was evidence to show that after the train broke the first time the engineer stopped the engine, as he should not have done in the exercise of proper care; and was further negligent, when the rear section was approaching, in starting the engine in such manner as to cause the second breaking. Such act of the engineer would have been the immediate cause of the collision, or the cause most nearly related to the accident; but this is not the test of what is an intervening independent cause, and not even the test of what is proximate cause. Gonzales v. City of Galveston, 84 Tex. 7, 19 S. W. 284. It seems to us that any cause which may be legally considered a proximate cause of an injury, must, if other causes existed, be regarded as concurring with these causes to produce the accident, in the sense in which that term is used in the charge. In Lane v. Atlantic Works, 111 Mass. 139, it is stated that: "The act of a third person intervening and contributing a condition necessary to the injurious effect of the original negligence will not excuse the first wrongdoer if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise. Whether in any given cause the act charged was negligent, and whether the injury suffered was within the relation of cause and effect legally attributable to it, are questions for the jury. Railway Co. v. Mussette, 86 Tex. 719, 26 S. W. 1075, and cases cited. It was an event that might be anticipated from the breaking of a train on a down grade that a collision would take place. The company...