Houston E. & W. T. Ry. Co. v. Boone

• Decision Date: 01 May 1912
• Citation: 146 S.W. 533
• Parties: HOUSTON E. & W. T. RY. CO. v. BOONE et al.
• Court: Texas Supreme Court

146 S.W. 533

HOUSTON E. & W. T. RY. CO. v. BOONE et al.

Supreme Court of Texas.

May 1, 1912.

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

Action by Ora K. Boone and others against the Houston East & West Texas Railway Company. Judgment for plaintiffs was affirmed in the Court of Civil Appeals (131 S. W. 616), and defendant brings error. Affirmed.

Baker, Botts, Parker & Garwood, Lane, Wolters & Storey, and Wm. A. Vinson, all of Houston, for plaintiff in error. Hogg, Gill & Jones, of Houston, for defendants in error.

DIBRELL, J.

Plaintiffs below, Ora K. Boone and others, the surviving wife, the minor child, and mother of T. L. Boone, brought this suit in the district court of Harris county against the Houston East & West Texas Railway Company to recover damages resulting from the alleged killing of said T. L. Boone on September 30, 1907, at Lufkin, Tex.

The grounds upon which recovery was sought were substantially that deceased, who had theretofore been in the service of the defendant as freight conductor, was, at the time of his death, temporarily employed as switchman in the railway yards at Lufkin. The duties of a switchman involved the handling and operation of engines and cars, and that, while so engaged in the performance of his duties, it became necessary to switch some cars onto several side or switch tracks on the night of the accident. By order of defendant's foreman in charge of the switching crew, the deceased "was directed to take charge of tracks Nos. 4 and 5, and to mount freight cars as they were kicked in to be set on that siding, to let them run the proper distance, and to set the brake and stop them at the right point." In the proper performance of his duties, the deceased mounted a box car that had been kicked onto that siding, and began to set the brake, for the purpose of stopping it, which was at a point about 600 feet from the entrance of the car on the side track. The cars were being kicked onto the siding by means of an engine, and the crew, after kicking the first car on track No. 4, kicked another car on track No. 5, and then kicked two other cars onto track No. 4. That the two cars kicked onto track No. 4 shortly after the car on which deceased was mounted, for the purpose of setting the brake, that such car should serve as a bumper, "were kicked in violently and at a dangerous rate of speed, and the brakes thereon were not set, and no one was placed on them to control their speed, or to stop them, or to lessen their speed, in order to prevent damage or injury, and that the said cars were thus propelled violently and rapidly against the car on which deceased was engaged in setting the brakes," and that from the impact from said cars, so violently thrown against the car on which deceased was working, he was thrown from the car and run over and crushed to death. "That there was no light on the several cars that were kicked in against the car on which deceased was riding, and that there was no warning of any sort given of the fact that they were kicked in, or would be kicked in, either at a dangerous rate of speed, or any other speed, before he had finished his duty of stopping the first car, and was ready to stop other cars that were kicked in on the siding of which he had been placed in charge." The defendant answered by general demurrer, general denial, assumed risk, and contributory negligence. The cause, under an appropriate charge by the court, was submitted to a jury, and upon their finding for plaintiffs a judgment for $12,500 was rendered against defendant.

The only issue of serious import we feel called upon to determine is whether there is any evidence in the record upon which the jury could base a verdict which presupposes negligence on the part of defendant from which the death of deceased resulted. The other questions raised by the assignments refer to certain special charges requested by defendant and refused by the court, and the comment of counsel for plaintiffs on the circumstance of the presence at the trial of the engineer, fireman, and brakeman, constituting the switching crew with deceased, at or near the place of the accident, as witnesses for defendant, but who were not offered by defendant as witnesses.

The matter and substance of the special charges refused were embodied in the court's general charge, which we think was comprehensive and fair.

The language of counsel for plaintiffs complained of is as follows: "The defendant's attorneys have used all means to close the light against the manner in which deceased was killed, because they had witnesses Coker, the engineer, Roberts, the fireman, and Reynolds, the yardmaster, placed under the rule, but did not offer them as witnesses; they knew that if these witnesses were introduced counsel for plaintiffs would get testimony from them that would help these plaintiffs in their case and harm the railroad company." It has always been considered proper, both in criminal and civil cases, for counsel to comment on the absence of witnesses, when it is within the power of such defaulting party to produce them, and when such witnesses are possessed of a knowledge of the transaction inquired about. This is especially permissible where such party has such witnesses under process, and within the jurisdiction of the court, and fails to place them upon the stand. Comment, upon such circumstances, cannot be said to be beyond the record, but fairly within it. The value of such comment must be left to the discretion of counsel conducting the case, and the freedom of speech in the argument of counsel for their respective clients cannot be circumscribed less than to matters within the record, or fairly deducible therefrom. Missouri Pac. Ry. Co. v. White, 80 Tex. 207, 15 S. W. 808.

As heretofore suggested, the most serious question raised in the petition for writ of error is that complaining of the court's failure to instruct a verdict for defendant. There was no eyewitness to the death of Boone, and the immediate causes that produced his death, and whether the result of defendant's negligence, must be established by circumstances. Negligence, like any other issuable fact, must be proven; but there exists no rule of evidence which denies the right to make such proof by circumstantial evidence. This principle is laid down in Thompson's Commentaries on the Law of Negligence, vol. 6, § 7863, as follows: "Negligence of either the defendant or the plaintiff need not be shown by direct and positive evidence, but may be inferred from other facts which are proved in the case, when such an inference is a reasonable and natural one to be made; but a presumption of negligence cannot be based on mere theories, or by simple deduction from other presumptions. In other words, a verdict for negligence may be supported by inference; but such inference must be a logical, probable, and reasonable deduction from proved or conceded facts. Negligence cannot be a mere matter of conjecture, but must be fairly inferable from the evidence. This principle permits the admission of circumstantial evidence to contradict positive and direct testimony given by eyewitnesses. It is not incumbent upon the plaintiff, after proving an accident which implies negligence, to show the particular negligence, when from the circumstances it is not in his power to do so."

The question, however, for this court is not whether the evidence, direct and circumstantial, is sufficient to establish the negligence of defendant, and that the death of deceased was caused by such negligence, but whether there is any evidence in the record from which the jury might have properly found...