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

• Court: Texas Court of Appeals
• Writing for the Court: Gallagher
• Citation: Gulf, C. & S. F. Ry. Co. v. Ballew, 39 S.W.2d 180 (Tex. App. 1931)
• Decision Date: 07 May 1931
• Docket Number: No. 1058.,1058.
• Parties: GULF, C. & S. F. RY. CO. v. BALLEW et ux.

39 S.W.2d 180

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

No. 1058.

Court of Civil Appeals of Texas. Waco.

May 7, 1931.

Rehearing Denied June 4, 1931.

Appeal from District Court, Johnson County; O. B. McPherson, Judge.

Action by S. M. Ballew and wife against the Gulf, Colorado & Santa Fé Railway Company. From a judgment in favor of plaintiffs, defendant appeals.

Affirmed.

Lee, Lomax & Wren, of Fort Worth, and Irwin T. Ward, of Cleburne, for appellant.

Randell & Randell, of Sherman, Ocie Speer, of Austin, and O. O. Chrisman, of Cleburne. for appellees.

GALLAGHER, C. J.

Appellees, S. M. Ballew and wife, Lela Ballew, sued appellant, Gulf, Colorado & Santa Fé Railway Company, to recover damages for the death of their minor son, Chester G. Ballew, who was accidentally killed while a passenger on one of appellant's trains. Said train was run as a special from Cleburne to Temple, Tex., to carry the Cleburne highschool football team, its supporters and friends, to a football game to be played at the latter place. Said train consisted of two engines, baggage car and sixteen passenger coaches. The baggage car and the first and second coaches had been set apart for the use of the football players and the carriage of their equipment. Deceased was the assistant manager of the team and as such had occasion to pass over the platforms between the first and second coaches, and while doing so the train broke in two at that point, causing him to fall upon the track, where he was run over and instantly killed. There is no contention that he was guilty of any negligence contributing to his death. Just prior to the accident several young men, who were also passengers on the train desired to pass through the rear door of one of the coaches about the middle of the train, and finding the door locked, lowered the movable glass panel at the top thereof and attempted to crawl through such opening to the rear platform of such coach. One of them, in doing so, lost his balance, and to prevent his falling reached up and grabbed either the lever of the conductor's air brake valve located just above the door, or the cord attached thereto. The result of such action was to cause the almost instant application of the air brakes in emergency, which was followed by the breaking in two and parting of the train at the place where the deceased fell. The parting of the train was caused by the breaking of part of the coupling, called a knuckle. There was testimony tending to show that the same was worn and defective. There was also testimony that the use of two engines in pulling the train, which was long and heavily loaded, contributed to the breaking of the knuckle and the parting of the train. There was expert testimony to the effect that the breaking of the train was the inevitable result of the application of the brakes in emergency. There was also testimony that such application would not necessarily cause a break in the train.

The case was tried to a jury. Appellant requested a peremptory charge in its favor, which was refused. The case was submitted on special issues. The court first submitted the issue of whether the death of the deceased was the result of an unavoidable accident, and next, whether such death was proximately and solely due to the act of the passenger in causing an emergency application of the air brakes. The jury were instructed in event of an affirmative answer to either of said issues, to return their verdict to the court without consideration of the other issues submitted. The jury, however, answered both said issues in the negative, and in response to further issues submitted, found that appellant failed to furnish the deceased a safe train to convey him as a passenger on the occasion in question; that the appliances used for coupling the cars that broke in two and parted were worn, defective, and insufficient in strength or power for the purpose for which they were used; that the use of the two engines coupled together in the way and manner they were used increased the shock or strain on the coupling apparatus, and that appellant used too many cars in said train, considering their kind and condition, for the safety of the deceased. The jury further found that each of said acts constituted negligence and was the proximate cause of the death of the deceased. The jury, in response to further issues, found that appellant was guilty of negligence in operating its train with two engines on that occasion and that such negligence was a proximate cause of the death of the deceased. The jury assessed appellees' damage at the aggregate sum of $10,580. The court rendered judgment against appellant in favor of appellees for recovery of the damages awarded.

Opinion.

Appellant, by various assignments of error and propositions thereunder, contends that the uncontradicted evidence showed as a matter of law that the unauthorized and unexpected action of the passenger in seizing the lever or cord attached to the air valve, which action resulted in an emergency application of the brakes, was the sole proximate cause of the accident which resulted in the death of the deceased. The testimony showed without contradiction that the act of the passenger in seizing the lever or cord of the air valve resulted in the emergency application of the brakes; that one of the knuckles of a coupling broke and the train parted between the first and second coaches from the engine; that the deceased fell on the track and was run over and killed. The testimony further showed without dispute that said knuckle was of standard type and that the break therein was a new one. The testimony as to the condition of the knuckle was conflicting. Appellant's witness testified that he examined the broken knuckle and that there was no indication of any flaw, defect, or bad material. Appellees' witness testified that he examined the broken knuckle; that it had seen lots of service and was well worn; that it had been used until it was strained and that it had a sand crack where the break occurred. Appellant's expert witness testified that the emergency application of the brakes under the circumstances created a strain far greater than could have been reasonably anticipated and greater than a new knuckle of standard type and perfect construction could withstand. Appellees' witness testified that under an emergency application of the air a train was liable to break in two if there was a weak point; that such application did not necessarily mean a break in the train, but that if there was a place too weak to support the strain, then the train would break in two at that point; that if there was no weak place there would not be a break in the train. There was also testimony that an emergency stop was one of the purposes of the air brake equipment. There was also testimony both from appellant's and appellees' witnesses that the use of two engines and the length and weight of the train greatly increased the strain on the couplings.

There may be two or more independent concurring proximate causes of one accident. While the accidental application by the passenger of the emergency air brake was admittedly a proximate cause of the accident in this case, it does not follow that negligence, if any, on the part of appellant in any of the matters above recited was only a remote cause, and not a concurring proximate cause at all. "Proximate cause" means such act wanting in ordinary care as actually aided in producing the injury as a direct and existing cause. It need not be the sole cause, but it must be a concurring cause such as might reasonably have been contemplated as involving the result under the attending circumstances. Gonzales v. Galveston, 84 Tex. 3, 7, 19 S. W. 284, 31 Am. St. Rep. 17. The issue of concurring proximate causes was involved in the case of Gulf, C. & S. F. R. Co. v. McWhirter, 77 Tex. 356, 360, 14 S. W. 26, 27, 19 Am. St. Rep. 755. In that case the railway company negligently permitted a turntable to remain unfastened and unguarded. The injured party, a child of tender years, tried to climb upon the turntable, when some of the other children playing there gave it a push, catching his leg between the turntable and the ties, and...