Lancaster v. Fitch

• Court: Texas Supreme Court
• Writing for the Court: Pierson
• Citation: Lancaster v. Fitch, 246 S.W. 1015, 112 Tex. 293 (Tex. 1923)
• Decision Date: 10 January 1923
• Docket Number: (No. 3794.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: LANCASTER et al. v. FITCH.

246 S.W. 1015

LANCASTER et al. v. FITCH.

(No. 3794.)^*

Supreme Court of Texas.

January 10, 1923.

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

Action by Ben E. Fitch against J. L. Lancaster and another, as receivers. Judgment for plaintiff was affirmed by the Court of Civil Appeals (239 S. W. 265), and defendants bring error. Affirmed.

Prendergast & Prendergast, of Marshall, for plaintiffs in error.

Bibb & Caven, of Marshall, for defendant in error.

PIERSON, J.

Defendant in error, Ben E. Fitch, was a brakeman on an interstate freight train, and was injured on December 4, 1920, while uncoupling freight cars at Cut-Off Junction in the state of Louisiana. He brought suit for damages under the terms and provisions of the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) and the Federal Safety Appliance Act (U. S. Comp. St. §§ 8605-8623) in the district court of Harrison county, Texas, alleging that in the performance of his duties in attempting to uncouple the cars of said train he went between two cars of the train for the purpose of turning the angle cocks on the air brakes or air-brake system of said train. He pleaded three separate acts of negligence as the proximate cause of his injury: (1) That a spike in the track, which protruded above the ties, caught his foot and caused the train to run over his leg; (2) that while he was between the cars the engineer negligently caused the train to move and to run over his leg; (3) that the angle cock which he was endeavoring to turn on one of the cars was defective and out of repair, and that while he was engaged in an effort to turn same in such defective condition he was caught by the train moving upon him, and his injury caused.

The case was submitted by the court to the jury upon a general charge, and the jury found for defendant in error. The Court of Civil Appeals (239 S. W. 265) held that the angle cock was defective, and that its condition was due to negligence of the plaintiffs in error, but it also held that such negligence of itself was not a proximate cause of the defendant in error's injury; that the condition of the angle cock by itself alone was not the proximate cause of the injury, and that defendant in error could not legally predicate a recovery on that ground alone. Therefore it held that the trial court could not properly submit to the jury the issue of proximate cause based upon the defective condition of the angle cock, but it affirmed the case under rule 62a (149 S. W. x), upon the ground that, notwithstanding the submission of this erroneous issue, the defendant in error would still be entitled to recover on the two issues properly submitted. This we think was error.

Defendant in error pleaded specifically the negligence in respect to the defective angle cock as a separate and distinct cause of action, and that it was the proximate cause of the injury. He introduced the proof of its defective condition and the circumstances attendant upon his effort to turn same and his resulting injury. This issue of negligence was specifically submitted to the jury by the court as being of itself alone sufficient ground of recovery. We think it is impossible to say that the jury did not find for defendant in error upon this issue alone. The Court of Civil Appeals, in affirming the judgment of the trial court, says:

"To reach the conclusion that the error in the instant case `amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment,' according to rule 62a, we are forced to find that, although three different issues were submitted, the jury's verdict was based upon the fact that the angle cock was the proximate cause of the injury, and that the jury did not find for the plaintiff on any other issue. If the jury found for the plaintiff on any two issues, the fact that a further but erroneous issue was submitted would not amount to a denial of the appellants' right or cause the rendition of an improper judgment, for the plaintiff would still be entitled to recover on the ones properly submitted and having evidence to support them. There are two grounds here on which the plaintiff was entitled to recover, there being evidence to support them, that were properly submitted; and as to these two grounds the appellants' rights and defenses were in no wise restricted or affected by the third ground or charge in respect to it. Is it to be concluded that the jury found against the plaintiff on the two issues legally submitted, and in his favor on the one issue on which he could not legally recover? The three issues are distinct. It is believed that rule 62a has application."

The jury may have found for defendant in error on each of the two issues properly submitted. On the other hand, as authorized by the pleading and the charge of the court, they may have found for defendant in error only on the issue that was improperly submitted. In order for courts to be able to administer the law in such cases with reasonable certainty and to lay down and maintain just and practical rules for determining the rights of parties, it is necessary that the issues made and submitted to juries, and upon which they are required to pass, be authorized and supported by the law governing the case.

The court instructed the jury that they must be governed by the law as given by the court in his instructions, and specifically instructed them to find for defendant in error if the angle cock was defective, if its defective condition was attributable to negligence on the part of plaintiffs in error, and if the negligence in respect thereto was the proximate cause of the injury. The charge of the court certainly told the jury that it was competent for them to find that the defective condition of the angle cock was a proximate cause of defendant in error's injury. Under the court's charge and under their oaths as jurors they were required to be governed by the charge. In order to hold the error harmless in the submission of the erroneous charge, we must hold that the jury disregarded the charge of the court. This we cannot do, but must presume that the jury in reaching its verdict gave full credit to this instruction and was governed by it. To say that the jury ignored this specific ground of recovery in the court's charge, and found for defendant in error on the other two charges submitted, would be to presume that the jury found because the train moved it was negligently moved, and that the spike protruding above the cross-tie was negligently permitted to be there, and that one or both of these acts was the proximate cause of the injury to defendant in error. That the train did move is undisputed, but whether the engineer negligently moved it, or whether the brakeman Whitley negligently gave a signal to move it, and whether the spike protruding above the cross-tie was negligence, are issues that must be definitely determined by the jury in defendant in error's favor before he would be entitled to recover upon those issues. The charge authorizing the jury to find for defendant in error upon the defective condition of the angle cock alone would make it impossible to say that they found for him upon the other two issues. Weisner v. M., K. & T. Ry. Co. of Texas (Tex. Com. App.) 207 S. W. 904; Tisdale v. Panhandle & S. F. Ry. Co. (Tex. Com. App.) 228 S. W. 133, 16 A. L. R. 1264.

To say that the jury must have taken the defective condition of the angle cock into consideration along with and in connection with the issue of the moving of the train or the issue of the spike, and, taken together, found for defendant in error, is to assume that plaintiffs in error were negligent in respect to those other issues, or at least that the jury necessarily found them negligent as to one of them.

In the case of Weisner v. M., K. & T. Ry. Co. of Texas (Tex. Com. App.) 207 S. W. 904, Weisner sued the railroad for damages for personal injuries to his wife resulting in her death. The jury found for the defendant railway company under a general charge which submitted an issue of contributory negligence not raised by the pleadings or the evidence. The Court of Civil Appeals (164 S. W. 405) affirmed the judgment under rule 62a. This court, in an opinion by the Commission of Appeals, reversed and remanded the case. Presiding Justice Montgomery said:

"This was a jury trial, and, under the law, the jury were the judges of the credibility of the witnesses and the weight to be given the testimony. The jury are required, both by their oath and the charge of the court, to accept the law as given in the charge by the court and be governed thereby. Theoretically at least, they are governed and controlled by the instructions given. We must therefore presume that in this case, as in all others, the jury, in determining the facts and reaching a verdict, gave proper attention to the charge. * * *

"In a jury case where there is a sharp conflict in the testimony, as to liability, the giving of a charge which imposes upon the plaintiff a greater burden than is required by law is calculated to prejudice the plaintiffs and cause the jury to render an improper verdict. It is never possible in such case for any appellate court, where the case is submitted under a general charge, to say upon what ground the jury acted."

Counsel for defendant in error vigorously present that it cannot be held, as a matter of law, that the defective condition of the angle cock, under the circumstances of the case, was not a proximate cause of defendant in error's injury, but that it was an issue for the jury to determine. After a careful review of the question, we have concluded that the Court of Civil Appeals erred in holding that the defective condition of the angle cock, under the facts, was not a proximate cause of the injury to defendant in...