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

• Decision Date: 30 December 1933
• Docket Number: No. 1438-6086.,1438-6086.
• Citation: 66 S.W.2d 659
• Parties: GULF, C. & S. F. RY. CO. v. BALLEW et al.
• Court: Texas Supreme Court

66 S.W.2d 659

GULF, C. & S. F. RY. CO. v. BALLEW et al.

No. 1438-6086.

Commission of Appeals of Texas, Section B.

December 30, 1933.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Action by S. M. Ballew and another against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs was affirmed by the Court of Civil Appeals [39 S.W.(2d) 180], and defendant brings error.

Judgments of the Court of Civil Appeals and of the district court reversed, and cause remanded.

Terry, Cavin & Mills, of Galveston, Irwin T. Ward, of Cleburne, and Lee, Lomax & Wren, of Fort Worth, for plaintiff in error.

Randell & Randell, of Sherman, Ocie Speer, of Austin, and O. O. Chrisman, of Cleburne, for defendants in error.

SMEDLEY, Judge.

Defendants in error sued plaintiff in error for damages on account of the death of their minor son, who was killed while a passenger on a special train of plaintiff in error, by falling between two cars where the train parted immediately following the accidental application by a fellow passenger, near the middle of the train, of the air brakes in emergency. The jury found that the death was not proximately and solely due to the act of the fellow passenger. It also found that plaintiff in error was negligent in three particulars and that each of such acts of negligence was a proximate cause of the death. The negligence as so found by the jury consisted in the use of appliances for coupling the cars that broke in two which were worn, defective, and insufficient in strength, the use of two engines coupled together in such way as to increase the shock or strain on the coupling apparatus, and the use of too many cars in the train. Judgment for defendants in error was affirmed by the Court of Civil Appeals. The facts are more fully stated in the opinion of the Court of Civil Appeals reported in 39 S.W.(2d) 180, 183.

The principal contention of plaintiff in error is that it was not responsible under the law for the break-in-two of the train and the death of the deceased because they were proximately and solely due to the unauthorized and unforeseeable act of a passenger in accidentally applying the air brakes in emergency; such act constituting a new, intervening, and independent cause. The Court of Civil Appeals, in affirming the judgment of the trial court, held that the act of the passenger in making an accidental application of the emergency brakes merely contributed a condition necessary to give the original negligence of plaintiff in error an injurious effect, that such act did not entirely supersede the original negligence, and was not necessarily of such a character as could not have been foreseen or anticipated, and therefore did not absolve plaintiff in error from liability for its negligence.

We have carefully examined the opinion of the Court of Civil Appeals, the record in the case, the briefs, and the authorities cited in them, and are of the opinion that, in view of the manner in which the case was tried and submitted to the jury, the answers of the jury to the issues submitted, and the evidence, the Court of Civil Appeals correctly decided this, the principal question in the case, and we approve the opinion of that court, in so far as it discusses the questions presented. It is deemed advisable, however, to set out some of the reasons for our approval and to refer to authorities not cited by the Court of Civil Appeals.

While ordinarily it is a question of fact whether an intervening act or agency causing or contributing to the injury ought to have been foreseen by the original wrongdoer, no such issue was in so many words submitted or requested to be submitted to the jury. The jury found that plaintiff in error was negligent in the use of a defective knuckle in the coupling, in the use of two engines, and in the use of too many cars in the train, and that each of these acts of negligence was a proximate cause of the death of the deceased. It further found that the death was not proximately and solely due to the act of the fellow passenger in causing the air brakes to be applied in emergency. These findings mean in effect that the act of the fellow passenger did not supersede the original negligence and that it and such negligence together brought about the injury, or, in other words, that the new act or agency did not break the causal connection between the negligence of plaintiff in error and the injury.

The conclusion of the Court of Civil Appeals appears to have been based both upon the ground that the act of the fellow passenger was but a new cause concuring with the original negligence which continued and cooperated with the new cause in the resulting injury, and upon the ground that the act was a new intervening cause of such character as could have been foreseen or anticipated. Both grounds find support in the authorities; the first, in those cited in the opinion of the Court of Civil Appeals, and also in the following authorities: Sandel v. State, 115 S. C. 168, 104 S. E. 567, 13 A. L. R. 1268; Mahoney v. Beatman, 110 Conn. 184, 147 A. 762, 66 A. L. R. 1121; 22 R. C. L. pp. 129, 130; and the second, in Seale v. G., C. & S. F. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602; Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, 164; 22 R. C. L. p. 132.

It is to be remembered that the question for ultimate determination in a case like this is whether or not the original negligent or wrongful act may be deemed the proximate cause of the injury, and that the test for determining such question is whether the injury, or a similar injury, might reasonably have been anticipated as the natural and probable result of the act. See the authorities last above cited, and also Gulf, C. & S. F. Ry. Co. v. Bennett, 110 Tex. 262, 219 S. W. 197; San Antonio & A. P. Ry. Co. v. Behne (Tex. Com. App.) 231 S. W. 354.

The intervention of a new cause or agency becomes important because, if it is such as could not reasonably have been anticipated, it may serve to make the resulting injury unforeseeable to the original wrongdoer. As said by Judge Gaines in Texas & P. Ry. Co. v. Bigham, supra: "The fact of the intervention of an independent agency, it occurs to us, bears more directly upon the question whether the injury ought, under all the circumstances, to have been foreseen."

Here, as has been pointed out in a carefully considered South Carolina case (Sandel v. State, 115 S. C. 168, 104 S. E. 567, 13 A. L. R. 1268), it is important to note that the difference between intervening causes and concurring causes is often overlooked. A failure to observe this difference probably accounts for the apparent conflict between the rule stated in Seale v. Ry. Co., supra, to the effect that, according to current authority, the connection between the original negligent act is broken, and the original wrongdoer relieved of liability, if the intervening cause and its probable or reasonable consequences be such as could not reasonably have been anticipated by the original wrongdoer, and the rule announced in Texas Power & Light Company v. Culwell (Tex. Com. App.) 34 S.W.(2d) 820, and in Texas Public Service Company v. Armstrong (Tex. Civ. App.) 37 S.W.(2d) 294 (application for writ of error refused), that the intervention of an unforeseen and unexpected cause is not sufficient to relieve a wrongdoer from the consequences of negligence if such negligence directly and proximately cooperates with the independent cause in the resulting injury.

The first authority deals with a true intervening act or agency, which supersedes the original negligent act, and of itself operates as the efficient cause; whereas, the second authorities have to do with concurrent negligence or a concurrent act which co-operates with the still persisting original act in bringing about the injury. When the new cause or agency concurs with the continuing and co-operating original negligence in working the injury, the original negligence remains a proximate cause of the injury, and the fact that the new concurring cause or agency may not in such case have been reasonably foreseeable should not relieve the wrongdoer of liability. That such fact does not so relieve him is held in Texas Power & Light Company v. Culwell, and Texas Public Service Company v. Armstrong, supra, and by the following other authorities: Sandel v. State, 115 S. C. 168, 104 S. E. 567, 13 A. L. R. 1268; Mahoney v. Beatman, 110 Conn. 184, 147 A. 762, 66 A. L. R. 1121.

Applying the rules above discussed to the facts of the case, including both the facts found by the jury and the undisputed facts, we are of the opinion that, under the general rule first discussed, and in view of the high degree of care owed by the carrier to its passengers, it cannot be said as a matter of law that the actual injury, or a like injury to a passenger, might not reasonably have been anticipated as the natural and probable result of the operation of the train in the condition and manner in which it was assembled and operated.

Referring more particularly to the act of the fellow passenger in applying the air brakes in emergency, it is our opinion that under the facts the application of the brakes was a concurring cause rather than an intervening cause, for the reason that, according to the findings of the jury, such act on the part of the fellow passenger did not supersede the original negligence of plaintiff in error, which still continued and co-operated with the new act or agency in bringing about the injury. Up to the very time the train broke in two it was operated with the defective coupling, and with two engines and the great number of cars, all of which conditions co-operated with the setting of the brakes in causing the train to break in two, and all of which conditions were substantial factors in producing the injury. Under the doctrine of concurring negligence above discussed, it is immaterial whether the setting of the brakes in emergency should...