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

• Decision Date: 01 June 1934
• Docket Number: No. 9973.,9973.
• Citation: 77 S.W.2d 326
• Parties: GALVESTON, H. & S. A. RY. CO. v. WALDO.
• Court: Texas Court of Appeals

Page 326

77 S.W.2d 326

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

No. 9973.

Court of Civil Appeals of Texas. Galveston.

June 1, 1934.

Rehearing Denied November 8, 1934.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Suit by Willis W. Waldo against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Baker, Botts, Andrews & Wharton, John P. Bullington, and Tom Martin Davis, all of Houston, for appellant.

Fulbright, Crooker & Freeman, of Houston (W. B. Bates, of Houston, of counsel), for appellee.

GRAVES, Justice.

This cause as now at bar is a repercussion of its former appearance, the denouements in which are fully reported under the same names and style in 119 Tex. 377, 29 S.W.(2d) 323, (Tex. Civ. App.) 35 S.W.(2d) 447, and (Tex. Com. App.) 50 S.W.(2d) 274, respectively; hence need not be repeated here.

This time in the trial court it was, in our opinion, submitted to a jury's arbitrament upon special issues appropriately embodying the essential fact basis for the application of the law of the case, as laid down by the Supreme Court in 50 S.W.(2d) 274, supra.

The jury has now answered those inquiries, and its verdict, being neither without any evidence to support it nor so against the weight of what was heard as to be clearly wrong, cannot be disturbed on this appeal for any lack of sufficiency in proof.

These conclusions, in their reaches, require the overruling of all appellant's assigned criticisms of the proceedings had upon the trial before the jury, especially those to the effect that the term "practice," as used in the court's charge, should have been defined to the jury, that "unavoidable accident," likewise appearing, was erroneously defined, and that none of the inquiries propounded followed the law as so declared by the Supreme Court.

The submitted issues and the jury's verdict thereon were these:

"No. 1. Do you find from a preponderance of the evidence that it was a practice on and just prior to September 17, 1926, for various employees of the defendant working in the same room with the plaintiff to propel paper clips, pins or other articles through the air in the direction of other employees?"

Answer: "We do."

"No. 2. If you have answered Special Issue No. 1 `We do' and only in that event, then answer:

"Do you find from a preponderance of the evidence that E. R. Doss had become acquainted prior to September 17, 1926, with the fact that such employees were indulging in such practice in so propelling paper clips, pins, or other articles through the air?"

Answer: "We do."

"No. 3. If you have answered Special Issue No. 2, `We do,' and only in that event, then answer:

"Do you find from a preponderance of the evidence that the failure of the defendant to issue specific instructions for bidding such practice of propelling paper clips, pins or other objects through the air in the office where plaintiff was working prior to and on September 17, 1926, was negligence as that term has been herein defined to you?"

Answer: "We do."

"No. 4. If you have answered Special Issue No. 3 `We do' then and then only in that event answer:

"Do you find from a preponderance of the evidence that the failure of the defendant to issue specific instructions against the practice of propelling paper clips, pins or other objects through the air in the office where plaintiff was working prior to and on September 17, 1926, was a proximate cause as that term has been herein defined to you of the plaintiff's injuries, if any he sustained?"

Answer: "We do."

"No. 5. If you have answered Special Issue No. 1 `We do,' and Special Issue No. 2 `We do not,' and only in that event, then answer:

"Do you find from a preponderance of the evidence that E. R. Doss, Chief Clerk of the Freight Accounting Department of defendant, failed to exercise ordinary care to acquaint himself with the practice that employees of the defendant were propelling paper clips, pins or other articles through the air in the office where plaintiff was working just prior to and on September 17, 1926?

"Answer `We do' or `We do not' as you find the fact to be."

To which special issue the jury made no answer.

"No. 6. If you have answered Special Issue No. 5 `We do' and only in that event, then answer:

"Do you find from a preponderance of the evidence that such failure as is inquired about in Special Issue No. 5 on the part of E. R. Doss, was negligence, as that term has been herein defined to you?

"Answer `We do' or `We do not' as you find the fact to be."

To which special issue the jury made no answer.

"No. 7. If you have answered Special Issue No. 6 `We do' and only in that event, then answer:

"Do you find from a preponderance of the evidence that such negligence as is inquired about in Special Issue No. 6 was a proximate cause, as that term has been herein defined to you, of plaintiff's injuries?

"Answer `We do' or `We do not' as you find the fact to be."

To which special issue the jury made no answer.

"No. 8. Do you find that plaintiff's injuries, if any, were not the result of an unavoidable accident?

"Answer `We do' or `We do not' as you find the fact to be.

"In connection with the foregoing issue you are instructed that an unavoidable accident is an event happening without fault or negligence upon the part of any one which proximately caused the injuries complained of."

To which special issue the jury answered: "We do."

"No. 9. What sum of money, if any, if paid in cash now will fairly and reasonably compensate the plaintiff Willis W. Waldo for the injuries, if any, proximately caused by the negligence of the defendant, if any, on the occasion in question, taking into consideration exclusively the following elements of damage:

"(a) Physical pain and suffering by him, if any, from September 17, 1926, down to the date of this trial.

"(b) Mental anguish suffered by him, if any, from September 17, 1926, down to the date of this trial.

"(c) The reasonable value of his diminished capacity, if any, to perform labor and services from October 31, 1927, down to the date of this trial.

"(d) The reasonable value, if any, if paid in money now, of his diminished capacity to perform labor and services in the future beyond this trial.

"Answer stating the amount in dollars and cents, if any you find."

To which special issue the jury answered: "$15,000.00 (Fifteen Thousand Dollars)."

To have essayed a didactic expounding to men of at least average intelligence of the meaning of the word "practice," as thus so naturally appearing in these five simply stated inquiries about an incident in itself as a-b-c like as children's play, would have been like undertaking to demonstrate the obvious, hence a perversion of, rather than a compliance with, R. S. art. 2189, which only requires the explanation of "legal terms"—that is, those having in law of themselves or when applied to judicial proceedings a significance either foreign to the language of ordinary life, or different from that usually given the same words when in such general use, as certainly was the one practice in this instance. Texas & P. Ry. Co. v. Short (Tex. Civ. App.) 62 S.W.(2d) at page 998, writ of error refused.

Moreover, the contention for such a definition here carries its own refutation, in that the Supreme Court itself, in defining the duty of the appellant to the appellee as its employee, under the facts in this controversy, uses the term as being synonymous with custom or habit. See Waldo v. Galveston, H. & S. A. Railway Co., 50 S.W.(2d) at page 276 (1, 2).

As concerns the given instruction, on the other hand, that "an unavoidable accident is an event happening without fault or negligence on the part of any one which proximately caused the injuries complained of," it may be conceded that, instead of "any one," there should have been "either the injured party or the defendant"; but, in the light of the record otherwise, such really unimportant departure from proper form cannot reasonably be said to have prejudicially affected appellant's rights. Aside from there being no such pleading, there was further no evidence, nor circumstance from which that might have been a reasonable inference, that any other person than employees of appellant was in the room when appellee was injured, nor that such an outsider had ever engaged in throwing paper clips on its premises; wherefore there was no support whatever for the indulgence of a mere surmise that some such third person may have come into the office among these employees and himself shot the clip that struck the appellee.

The several specifications against the first four of the quoted issues as not being in conformity to the law of this case itself, as already declared by the Supreme Court, would seem more nearly contumacious toward that tribunal than the lodging of a true bill against the trial court; the sum and substance of them being:

(1) Under No. 1, the jury could find there was a practice of shooting paper clips, even if it believed these were shot only on two days either widely separated in time or immediately following each other.

(2) The form of No. 2 would permit an affirmative answer thereto, even though the jury believed Doss had acquired knowledge of the claimed "practice" on the day (or even a few hours) before the injury, instead of limiting any finding as to when he became so acquainted to a time within which the appellant, by the exercise of due care, reasonably could have, in advance, taken proper steps to stop the shooting.

(3) Appellant's remissness, if any, lay in neglecting to properly enforce its long-standing pre-existing rules against shooting paper clips (all its employees, inclusive of the appellee, having all along both known of and so understood them), not in merely failing to make such a further statement thereof as issue No. 3 called for, which therefore in law could neither have constituted actionable...