Gulf, Colorado & Santa Fe Railway Company v. Deen

• Decision Date: 07 May 1958
• Docket Number: No. A-6584,A-6584
• Court: Texas Supreme Court
• Parties: GULF, COLORADO & SANTA FE RAILWAY COMPANY, Petitioner, v. Earl R. DEEN, Respondent.

Page 933

312 S.W.2d 933

158 Tex. 466

GULF, COLORADO & SANTA FE RAILWAY COMPANY, Petitioner, v. Earl R. DEEN, Respondent.

No. A-6584.

Supreme Court of Texas.

May 7, 1958.

Rehearing Denied May 28, 1958.

Woodruff & Holloway, Brownwood, Hudson, Keltner & Sarsgard, Ft. Worth, McLeod, Mills, Shirley & Alexander, Galveston, for petitioner.

David C. McCord, Johnson, Guthrie & Stanfield, Dallas, for respondent.

GARWOOD, Justice.

The judgment here under review is one by the Court of Civil Appeals (306 S.W.2d 171) affirming, upon condition of remittitur of $5500, a $21,450 judgment of the trial court in favor of the plaintiff Deen in his action for personal injuries against the defendant Gulf, Colorado and Sante Fe Railway Company under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., the affirmance being consequent upon reversal by the Supreme Court of the United States of the prior judgment of the Court of Civil Appeals in the same case, in which the latter court had held the verdict to be without support in the evidence. ¹

The principal questions are narrow ones involving the impact of the Supreme Court judgment of reversal upon the factual jurisdiction of our Courts of Civil Appeals. The factual powers in question are: (a) that of reversing and remanding for a new trial, when the court believes the verdict or the fact findings of the trial judge to be so against the great weight and preponderance of the evidence as to be manifestly wrong notwithstanding they may be supported by some evidence of substantial character; ² (b) that of requiring as a condition of affirmance and alternative to reversal and remand for a new trial a remittitur of such portion of the damages as the court considers excessive. ³

Both the plaintiff employee and defendant employer being now petitioners in this Court, they will be sometimes referred to herein by their respective trial court designations.

Deen's recovery in the trial court was by reason of a broken leg suffered in the course of his regular employment in the shops of the defendant as the result of an effort on the part of himself and an assisting fellow servant to dump a 550-pound piece of babbitt metal from an old melting pot preparatory to putting it into a new pot. The old pot, which was more or less the same size and shape of an ordinary kitchen sink and itself weighed some 250 pounds, was sitting on the floor, and the two employees sought to dump the metal content by lifting with their own hands the far edge of the pot more or less in their own direction, with the result that, when the metal fell out, it struck the plaintiff's leg.

There was a proper lifting crane or apparatus at hand which the plaintiff knew how to operate by himself, but which had, according to his evidence, no proper clamps or other implements whereby to affix the lifting chains to the edge of the pot for effective handling of this particular operation. The plaintiff, while a mere servant, was the one responsible for the particular work, understood it well, and had actually done it several times before by hand with the aid of three of four fellow servants, although the lifting in the latter instances was evidently done by raising the side of the pot nearest the lifters and thus dumping the contents away from them. In the present instance, the plaintiff, although not directed, or in any fashion required, to do the dumping operation by himself, was attempting to do so, when his fellow servant voluntarily proceeded to help him. While it does not appear that additional assistants had been actually delegated by the foreman, or were standing nearby awaiting a chance to help, the evidence showed clearly that the plaintiff could have got all the needed assistance by asking for it, as, indeed, he had done in prior instances without difficulty.

Notwithstanding the foregoing, the plaintiff's suit was based expressly, perhaps necessarily, upon the combined propositions that he was not supplied with proper tools and that sufficient assistance was not properly afforded him to do the lifting by hand, as well as upon the further proposition that the defendant failed to give him proper supervision.

The jury found (a) that the accident proximately resulted from negligence of the defendant in failing to supply proper tools and that the plaintiff's total damages were $39,000; but it also found (b) that the defendant did not fail to give the plaintiff proper supervision, and (c) that the plaintiff himself was negligent in failing to obtain additional help and thus contributed to his own injury to the extent of 45 per cent. The trial court rendered judgment accordingly for the plaintiff in the net sum of $21,450.

The defendant thereupon appealed to the Court of Civil Appeals, presenting there, in due form and based on a proper record in the trial court, three alleged errors (along with others hereinafter discussed) to wit, (1) that the above-mentioned sole finding of negligence on the part of the defendant was unsupported by evidence, and that accordingly the appellate court should reverse and render judgment that the plaintiff take nothing, as the trial court should have done; (2) that (alternatively) the same finding was so against the great weight and preponderance of the evidence as to be manifestly unjust, and that the appellate court should accordingly reverse and grant a new trial, as the trial court should have done; and (3) that the gross damages found ($39,000) were excessive. As before indicated, the Court of Civil Appeals, by its opinion reported in 275 S.W.2d 529, sustained assignment (1), rendered judgment accordingly that the plaintiff take nothing, but did not in that opinion expressly rule or comment upon point (2) or the other remaining points.

The points in question, as indicated by the citations in footnotes 2 and 3, supra, respectively correspond to definitely separate, familiar and long-established institutions of Texas practice. Our practice recognizes important differences between (1) and (2). The former we have always considered as presenting a question of law and the latter one of fact. The problem in the former is merely to ascertain if there is any evidence of more than a scintilla to support the verdict. In the latter it is the quite different problem of balancing substantial evidence that supports the verdict against substantial evidence that is against the verdict and thus determining, for the sole purpose of ordering or not ordering a new trial, whether the great weight and preponderance of the evidence is against the verdict.

While the instant case concerns only the powers of our appellate courts, the two points, with their differences, also occur in the trial court. For example, the trial judge may refuse to submit a requested jury issue when he considers that the answer sought would be without support in the evidence and may accordingly instruct a verdict and render judgment for the opposite party, or, having let the issue go to the jury, may later render judgment non obstante veredicto on the same ground. On the other hand, the judge can do none of these things where the issue or verdict has some support in the evidence, although the great weight and preponderance of the evidence may be the other way. In the latter situation he may grant a new trial, but, by reason of our constitutional guarantee of trial by jury, this is all he may do, and, under Rule 326 of our Rules of Civil Procedure, he may do it not more than twice in the same litigation.

On appeal, our Courts of Civil Appeals exercise the same powers as the trial judge in the matter of upholding or setting aside verdicts by reason of evidence or deficiency therein. If the appellant raises only the law point of 'no evidence', they affirm the judgment for the appellee when they consider the verdict to be supported by more than a scintilla, and, when they consider it not so supported they ordinarily reverse and render final judgment in the appellant's favor. If the appellant raises only the point that the verdict is against the great weight and preponderance of the evidence, the court, of course, affirms the trial court judgment when it considers the point to be without merit; but, when the point is considered well taken, the court merely remands for a new trial, and cannot make its own findings or render final judgment for the appellant in accordance with the greater weight and preponderance of the evidence. The action of the appellate court in such a situation is thus no more nor less than that of the trial court when the latter grants or refuses a new trial on the same point. The particular appellate power derives directly from Art. V, Sec. 6, of the State Constitution, Vernon's Ann.St. See the citations in footnote 2.

Often both points are raised on appeal. In that event the Court of Civil Appeals will ordinarily act first upon the point of 'no evidence'. If it considers the latter well taken, it will reverse and, ordinarily, render final judgment for the appellant, disregarding the point of weight and preponderance. But if it regards the point of 'no evidence' as not well taken, that is, if it finds the verdict to be supported by more than a scintilla of evidence, it must then consider the point of weight and preponderance, affirming the trial court, if the point is not well taken and, if the contrary, reversing and remanding for a new trial.

The two questions also have different status in our Supreme Court. Being a court of law only, we will not review a holding of the Court of Civil Appeals that a verdict is or is not against the great weight and preponderance of the evidence, the holding being considered one of fact. We will, however, review a holding that the verdict is or is not supported by evidence, that matter being one of law. What we actually do with the case depends on the circumstances. For example, if we disagree with the holding of the Court of Civil Appeals that a verdict for ...