McCray v. Galveston, H. & S. A. Ry. Co.

• Decision Date: 03 February 1896
• Citation: 34 S.W. 95
• Parties: McCRAY et al. v. GALVESTON, H. & S. A. RY. CO.
• Court: Texas Supreme Court

34 S.W. 95

McCRAY et al. v. GALVESTON, H. & S. A. RY. CO.

Supreme Court of Texas.

February 3, 1896.

Error to court of civil appeals of Fourth supreme judicial district.

Action by Louisa McCray and others against the Galveston, Harrisburg & San Antonio Railway Company. From an affirmance by the court of civil appeals (32 S. W. 548) of a judgment for defendant, plaintiffs bring error. Reversed.

Thos. H. Franklin and Yale Hicks, for plaintiffs in error. Upson & Bergstrom, for defendant in error.

BROWN, J.

Louisa McCray, the widow of Jesse McCray, deceased, and their four children, Charlie, Nettie, Jesse, and Alice, sued the defendant, the Galveston, Harrisburg & San Antonio Railway Company, for damages on account of the death of their husband and father. The facts as proved are that Jesse McCray was in the employ of the defendant as a brakeman, and at the time of his death was sitting on a car loaded with steel rails, on the defendant's road, going into the city of San Antonio. The car was one of a train of about 10 or 12 cars loaded with steel rails, and a box car and caboose. The train was running at a rate of about 25 miles per hour, when one of the steel rails fell from the flat car in front of the one on which Jesse McCray was sitting. One end of the steel rail struck the ground, and the other end resting on the side of the car, in the language of the witness, "swept the whole north side of the train," and struck Jesse McCray, who was sitting on the north side of the car, killing him instantly. The steel rail was about 30 feet long and weighed 700 pounds. The proof showed that about one hour after the train arrived at San Antonio the car from which the rail fell was examined by the conductor, and it was found that all of the standards or guards remaining on it were in good condition. The witness did not know how many guards there were on the car before the accident occurred. He stated that he knew that there were not less than four of such guards on each side when he received it, because he did not consider it safe with less than four guards on each side, and would not have received it with less. The plaintiffs introduced L. J. Hoyt, who testified that he had been in the service of railroad companies for 14 years in the capacity of brakeman, switchman, and conductor, and that he knew the manner in which railroad rails are usually loaded on flat cars, and how they are usually protected; and he also knew how they should be loaded and protected in order to prevent them from falling off. The plaintiffs proved by said witness Hoyt the manner in which the said steel rails should have been loaded upon the flat cars, and offered to prove by him that if the said rail had been loaded in such manner it could not have fallen off as it did. To this testimony the defendant objected, upon the following grounds: (1) That it was irrelevant to any issue in the case; (2) that the facts sought to be proved were not the subject of expert testimony; (3) that to allow the witness to testify to said facts was to permit him to express his opinion with reference to the matter without first showing that he had knowledge of the facts upon which said opinion was based; and (4) that the opinion of the witness was not admissible,—which objections were sustained by the court, and the evidence excluded. This was the only evidence offered upon the trial, and the court instructed the jury to find a verdict for the defendant, which was done, and judgment was rendered by the district court for the defendant, which was affirmed by the court of civil appeals. Plaintiffs in error urge two objections to the judgment of the court of civil appeals in this case, as follows: (1) That the court erred in sustaining the action of the district court in instructing the jury to find for the defendant; (2) that the court erred in sustaining the ruling of the district court excluding the evidence of witness Hoyt, as shown by the bill of exceptions.

It is a general rule that when a servant sues his master or employer for damages arising from injuries caused by the negligence of the latter, the plaintiff must prove the negligence of the defendant, and that proof of the accident and injury alone will not be sufficient to authorize a recovery. However, it is well settled by authority that the circumstances attending the injury may be sufficient to establish the fact of negligence without any direct proof thereof. In the case of Railway Co. v. Crowder, 63 Tex., on page 504, Judge Stayton, after stating the general rule, says: "There is no doubt that cases occur in which the accident is of such character as of itself, when considered in connection with the facts which necessarily appear in showing the accident, to amount to sufficient proof of the want of due care by the defendant, and of the exercise of due care by the plaintiff, to authorize a jury to find both facts, without any direct proof on either point; but this does not affect the question of burden of proof, but relates rather to the sufficiency of the evidence furnished by the accident itself. The burden of proof resting on a plaintiff upon the issues of negligence of the defendant and his own exercise of due care requires that he should show the facts surrounding and leading to the accident, and if from these, when shown, a jury may reasonably infer negligence in the defendant contributing to the injury, and the exercise of due care by the plaintiff, then he is entitled to a verdict; but, if he does not show how the accident occurred by which he was injured, by showing his own relation to it, and the other surrounding facts, some or all of which may appear from the character of the accident itself, then he has not gone with his evidence as far as the law requires him to go to authorize a recovery." Mr. Wharton, in his work on Negligence (section 421), having stated the general rule, says "But the very nature of the accident may of itself, and through the presumption it carries, supply the requisite proof." In Shear. & R. Neg. § 59, the author, having likewise stated the general rule upon the subject, continues: "In many cases the maxim `Res ipsa loquitur' applies The affair speaks for itself. It is not that in every case negligence can be assumed from the mere fact of the accident and of injury, but in these cases the surrounding circumstances, which are necessarily brought into view by showing how the accident occurred, contain, without further proof, sufficient evidence of the defendant's duty and of his negligence to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof of negligence that the injured person is able to offer, or that it is necessary to offer." In Scott v. Docks Co., 3 Hurl. & C. 596, the court announced the same rule in the following language: "There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant, or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care." The doctrine announced in the foregoing quotations is amply sustained by the authorities, both English and...