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

• Decision Date: 16 January 1901
• Citation: 60 S.W. 438
• Parties: GULF, C. & S. F. RY. CO. v. WILSON.
• Court: Texas Court of Appeals

60 S.W. 438

GULF, C. & S. F. RY. CO. v. WILSON.

Court of Civil Appeals of Texas.

January 16, 1901.

On motion for rehearing. Overruled.

For former opinion, see 59 S. W. 589.

GILL, J.

Appellee insists that this court is without power to reverse a case upon the facts if there is any evidence, however slight, in support of the verdict; and that the reversal of the judgment in this cause was an unwarrantable invasion of the province of the jury. It is contended that we are authorized to disturb the verdict of a jury only in the event it is entirely without support in the evidence. If this contention is sound, then the distinction between the powers and duties of the courts of civil appeals and our supreme court fails in a large measure; for whether there is any evidence in support of an issue is a question of law which the supreme court has jurisdiction to determine. In every case affirmed by us we are required to find the sufficiency of the facts to sustain the judgment of the trial court, if the case may be taken to the supreme court on writ of error. Why this useless and troublesome requirement if the contention of appellee is sound? We do not desire to add anything further to what has been said upon this point. It is not an open question.

Appellee also complains that the court, as might seem to be indicated by certain expressions in the main opinion, disregarded the testimony of appellee that he not only looked, but listened, before undertaking to cross the track of appellant. The complaint may be justified by a general expression in the opinion that he "neither looked nor substituted any other character of care therefor." It was, in effect, a finding that the account given by appellee was so inconsistent and so at variance with the undisputed facts of the situation as to be incredible, and that, notwithstanding his testimony that he looked and listened as many as a dozen times, the admitted facts show that, if this were true, the accident would have been impossible, except upon the theory that, with all the knowledge which his asserted care must have disclosed, he carelessly and recklessly undertook to cross too near the moving cars. We have not undertaken to say just when a man should look or listen when crossing a railway track, but expressly held it was a question for the jury. Appellee insists that he looked (and therefore listened) the last instant before undertaking to cross. Admitting the truth of this statement, such care as he claims...