Gulf, C. & S. F. Ry. Co. v. Boyce

• Citation: 87 S.W. 395
• Parties: GULF, C. & S. F. RY. CO. v. BOYCE et al.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 26 April 1905
• Court: Court of Appeals of Texas

87 S.W. 395

GULF, C. & S. F. RY. CO. v. BOYCE et al.^*

Court of Civil Appeals of Texas.

April 26, 1905.

Appeal from District Court, Cooke County; D. E. Barrett, Judge.

Action by Gusta Boyce and others against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

J. W. Terry and A. H. Culwell, for appellant. Potter & Potter and Culp & Giddings, for appellees.

NEILL, J.

Appellees, the wife, daughter, and mother of Mark R. Boyce, sued appellant for damages resulting from his death, which they alleged was caused by appellant's negligence. The negligence alleged and the defense pleaded will be indicated by our conclusions of fact and law. The trial resulted in a judgment for appellees in the sum of $17,500, of which $10,000 was apportioned to the wife, $5,500 to the daughter, and $2,000 to the mother of deceased.

Conclusions of Fact.

On July 2, 1903, Mark R. Boyce, while in the employ of appellant and in the discharge of his duties as engineer, was killed by the derailment and overturning of the engine he was operating. The evidence is sufficient to show that the defendant was guilty of negligence in failing to use ordinary care in the construction of a culvert across its roadbed near where the derailment occurred, reasonably adequate to carry off the water that it might have reasonably anticipated the culvert would be required to drain in order to keep its roadbed reasonably safe for its employés in running trains and engines; that by reason of such negligent construction and inadequacy of the culvert the water from a rainfall, such as human foresight could be reasonably expected to anticipate, was backed up against and caused to run over the embankment and wash the dirt away from the ends of cross-ties which supported the rails of defendant's road, thereby rendering it unsafe and dangerous. The evidence also is sufficient to prove that the defendant was negligent in failing to exercise ordinary care in maintaining a reasonably safe railway track at the point where the derailment occurred, in that the cross-ties beneath the rails were rotten, and not of sufficient strength at the time of the derailment, in the condition the track was then, to support the engine, and prevent it from turning over. Both these acts of negligence were alleged by plaintiffs as proximate causes of derailment and overturning of the engine which caused the death of Boyce. The jury may have concluded from the evidence either that the existence of the negligence first found was the proximate cause of his death; or, in the absence of such act of negligence, it may have found that, though the flood from the rainfall was such that human foresight could not be reasonably expected to anticipate, and therefore an act of God, yet the negligence of defendant in failing to exercise ordinary care in maintaining a reasonably safe track, in that the cross-ties were rotten and of insufficient strength, concurred in point of time and place with such vis major in the overturning of the engine, or so directly contributed to it as to render it reasonably certain that such act of God alone would not have been sufficient to cause the engine to be derailed and overturned. The evidence is reasonably sufficient to support either finding; and either, in the absence of assumed risk or contributory negligence on the part of the deceased, would render the defendant liable. The death of Boyce was not caused by any risk assumed by him as ordinarily incident to his employment; nor was he guilty of any negligence proximately contributing to his injury. By reason of defendant's negligence in causing the death of Boyce, each plaintiff was damaged in the amount assessed by the jury in her favor.

Conclusions of Law.

1. While our conclusions of fact dispose of the first, second, third, eleventh, twelfth, and fourteenth assignments, each of them is so urgently insisted upon it is deemed proper to give our reasons for overruling them.

(1) Under the first it is insisted that the verdict is without evidence to support it in (a) that it fails to show that rotten ties, if any, caused or contributed to the wreck, but, on the contrary, the evidence shows that the wreck was caused by the washing away of the portion of the embankment from under the tracks; (b) that it fails to show defendant was guilty of any negligence in providing a waterway through its roadbed; and (c) it shows there was an extraordinary rainfall or waterspout at the time and place of the wreck, such as could not have been reasonably anticipated by the defendant. The evidence shows beyond a doubt that the culvert was wholly insufficient to carry off the water, and by reason thereof the roadbed was overflowed, and a part of its embankment washed from under the cross-ties which supported the rails. If this insufficiency of drainage was caused by the defendant's negligence, and as the direct result of such negligence the engine was overturned, it is of no moment whether the defendant was further negligent in having rotten cross-ties under its rails, or whether such ties contributed to the wreck. The question of whether rotten cross-ties contributed to the derailment and overturning of the engine becomes material only in the event defendant was not negligent in providing sufficient drainage. Whether it was negligent in this depends upon whether the rain which caused the overflow of the roadbed was so far outside the range of ordinary human experience that the duty of exercising reasonable care did not require the defendant to anticipate and provide against it. The foundation of the rule that the act of God excuses the failure to discharge a duty is the maxim, "Lex neminem cogit impossibilia." If by the use of reasonable care, prudence, and diligence under the circumstances of a particular case it is possible to discharge the duty, then those circumstances do not constitute a valid excuse for a failure to perform it. Nothing less than a fortuitous gathering of circumstances preventing the performance of a duty as could not have been foreseen or overcome by the exercise of reasonable prudence, care, and diligence constitutes an act of God which will excuse the discharge of the duty. S. P. Co. v. Schoer, 114 Fed. 466, 52 C. C. A. 268, 57 L. R. A. 710. The question as to whether the evidence in regard to an accident shows that it was directly caused by an act of God is one of fact to be determined by the jury. Webb's Pollock on Torts, 606. While the evidence shows that the rain which caused the water to wash over the track was a very hard one, it cannot be said from the evidence, as a matter of law, that by the exercise of reasonable care, prudence, and diligence the defendant could not have so constructed and maintained its culverts as to prevent its rendering its road, at the time and place of the accident, an unsafe place for its trainmen to do the work deceased was engaged in when he was killed. Therefore, as there was evidence from which the jury could have found that the defendant was guilty of negligence in this regard, and such negligence was the proximate cause of the death of Boyce, and as the verdict is consistent with such findings, we deemed it our duty to give effect to the verdict. These facts must necessarily have been found by the jury, if, as defendant contends, the evidence conclusively shows that the rotten cross-ties did not contribute to the derailment and overturning of the engine.

If, however, the jury found there was such an extraordinary rainfall or waterspout as could not have been reasonably anticipated and provided against by the exercise of reasonable care, prudence, and diligence, then it follows that they found that defendant was negligent in having rotten cross-ties, which were not reasonably sufficient to maintain the weight of the engine at the time and place of the accident, and that such negligence concurred with and contributed to such extraordinary rainfall in causing the accident, and that without such negligence Boyce would not have been killed. Under such findings the defendant would be liable, for the rule is well settled that, "if damage is caused by the concurring force of defendant's negligence and some other cause for which he is not responsible, including the act of God, the defendant is nevertheless responsible if the damage would not have occurred except for defendant's act." Whart. Neg. 123; Shearm. & Redf. Neg. 39; 1 Thompson, Neg. §§ 72, 73; Bonner v. Wingate, 78 Tex. 333, 14 S. W. 790; Ilfrey v. Railway, 76 Tex. 63, 13 S. W. 165; Sonneborn v. Southern Ry. Co. (S. C.) 44 S. E. 77; Herring v. C. & W. Ry. (Va.) 45 S. E. 322; Commonwealth Elec. Co. v. Rose (Ill.) 73 N. E. 780. The evidence was sufficient to prove such negligence, its concurrence with the flood in causing Boyce's death, and that without such negligence the engine would not have overturned and killed him; for the testimony shows that a number of the cross-ties about where the engine turned over were rotten, that such cross-ties broke in the middle, and that the few sound ties there did not break. This shows, the embankment being washed from under them, the...