Missouri-Kansas-Texas R. Co. v. Shelton

• Decision Date: 15 May 1964
• Docket Number: MISSOURI-KANSAS-TEXAS,No. 16343,16343
• Parties: RR. CO., Appellant, v. H. T. SHELTON, Appellee.
• Court: Texas Court of Appeals

Page 842

383 S.W.2d 842

MISSOURI-KANSAS-TEXAS RR. CO., Appellant, v. H. T. SHELTON, Appellee.

No. 16343.

Court of Civil Appeals of Texas, Dallas.

May 15, 1964.

Rehearing Denied Oct. 9, 1964.

W. A. Thie, Denison, and Elliott & Nall, Sherman, for appellant.

Charles H. Gullett and Robert Doss, Denison and Baker, Jordan, Shaw & Foreman, Dallas, for appellee.

DIXON, Chief Justice.

Missouri-Kansas-Texas Railroad Company has appealed from a judgment for $25,000 awarded to appellee H. T. Shelton, a switchman employed by appellant. The suit was brought for damages for personal injuries. Recovery was sought under the provisions of the Federal Employers' Liability Act, Title 45, Secs. 51 and 53, U.S.C.A.

Appellee alleges that he sustained serious injuries while alighting from a moving train not only as a result of being struck by a caboose on the train from which he alighted but also as a result of being struck by an engine coming from an opposite direction upon an adjacent track.

Sixty-seven special issues were submitted to a jury. In answering these issues the jury in effect acquitted appellant in all particulars except in its answers to Special Issues Nos. 8, 9, 10 and 65, which four issues were answered as follows:

(8) Appellant permitted chatt, gravel rocks, mounds of earth or debris to remain in the area of the hump where appellee alighted;

(9) said act was negligence;

(10) appellee's injuries resulted in whole or in part from such negligence;

(65) appellee's injuries were not the result of an unavoidable accident.

The jury did not find that any act of appellee contributed to cause his injuries. $Appellant's points on appeal, Nos. 1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 16, 17 and 18, all involve appellant's main contention: that the court erred in requiring the jury to apply different standards to appellant than to appellee in matters of causal relationship. The court submitted issues and definitions which permitted answers favorable to appellee if the jury found that appellee's injuries resulted in whole or in part from appellant's negligence. But as to contributory negligence the court submitted issues and definitions which permitted answers favorable to appellant only if the jury found that appellee's injuries were proximately caused by his own negligence.

Appellant not only objected to the issues as submitted but objected to the court's refusal to submit requested issues and definitions which would have required the jury to apply the same standards to appellant and appellee in matters of causal relationship.

The Federal Employers' Liability Act Title 45, Sec. 51 expressly provides that every common carrier by railroad while engaged in interstate commerce shall be liable in damages to any employee suffering injury resulting 'in whole or in part' from the negligence of the railroad. This provision has been upheld in numerous decisions, Federal and State.

We quote from the opinion of the Supreme Court of the United States in Rogers v. Missouri Pacific Railroad Company, 352 U.S. 500, 77 S.Ct. 443, 448, 1 L.Ed.2d 493:

'Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. The statute expressly imposes liability upon the employer to pay damages for injury or death due 'in whole or in part' to its negligence. (Emphasis added.)

'The law was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer's negligence. The employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit. The burden of the employee is met, and the obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference.'

See also Dennis v. Denver & Rio Grande Western R. Co., 375 U.S. 208, 84 S.Ct. 291, 11 L.Ed.2d 256; Coray v. Southern Pacific Co., 335 U.S. 520, 69 S.Ct. 275, 93 L.Ed. 208; Page v. St. Louis Southwestern Ry. Co., 5 Cir., 312 F.2d 84; and Campbell v. Chesapeake & Ohio Ry. Co., 36 Ill.App.2d 276, 183 N.E.2d 736.

There are also numerous opinions, some of them by Texas courts, in which it is held that the Federal Statute is controlling over the common-law or statute of a state. Texas & Pacific Ry. Co. v. Younger, Tex.Civ.App., 262 S.W.2d 557; Rio Grande, E. P. & S. F. R. Co. v. Dupree, (Comm.App.) 55 S.W.2d 522; and see the annotations under Note No. 54 of Title 45, Sec. 51, U.S.C.A.

Title 45, Sec. 53, U.S.C.A. expressly provides that in actions for personal injuries to an employee or for injuries resulting in death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. There are many cases upholding this provision, the latest being Dennis v. Denver & Rio Grande Railroad Company, supra. See also Wantland v. Ill. Central R. Co., 7 Cir., 237 F.2d 921; Sears v. Southern Pacific Co., 9 Cir., 313 F.2d 498; and the numerous annotations under Notes Nos. 41-44, of Title 45, Sec. 53, U.S.C.A.

In applying this statute a definition of contributory negligence has been approved which definition includes the proximate cause theory as applied to the alleged contributory negligence of the employee. Chesapeake & Ohio Ry. Co. v. Richardson (1941), 116 F.2d 860, cert. denied, 313 U.S. 574, 61 S.Ct. 961, 85 L.Ed. 1531. See also Atchison T. & S. F. Ry. Co. v. Seamas, 9 Cir., 201 F.2d 140.

We are convinced that under the Federal Statutes, Title 45, Secs. 51 and 53, U.S.C.A., it was not error for the trial court to submit issues to the jury inquiring whether appellee's injuries resulted in whole or in part from appellant's negligence. We have been impelled to this conclusion by the plain wording of the statute itself and by the interpretation put thereon by numerous judicial opinions, especially by the strong language used by the Supreme Court of the United States in Rogers v. Missouri Pacific RR. Co., supra, from which opinion we quoted earlier in this opinion.

We are also convinced that it was not reversible error for the court to submit the contributory negligence issues in such manner as to inquire of the jury whether appellee's negligence was, in any of the alleged instances, a proximate cause of his injuries. The Congress has seen fit by statute to supplant the common-law duty of railroads to employees by the more drastic duty of the 'In-whole-or-in-part' causation concept. But the Congress has not seen fit by statutory enactment to change the common-law concept of proximate cause with reference to contributory negligence of the employee. And in the absence of such a statutory enactment the common-law rule must prevail. Texas & N. O. R. Co. v. Railroad Commission, Tex.Civ.App., 220 S.W.2d 273; Smith v. J. Weingarten, Inc., Tex.Civ.App., 120 S.W.2d 878, 880; City of Corpus Christi v. Coffin, Tex.Civ.App., 35 S.W.2d 202; State v. Anderson, 119 Tex. 110, 26 S.W.2d 174, 69 A.L.R. 233: 15 C.J.S. Common Law Sec. 12a, p. 619.

The common law prevails in Texas unless inconsistent with the Constitution and laws of the state or the United States, Art. 1, Vernon's Ann.Civ.St. The common law prevails with reference to causal relationship in contributory negligence. It is a long established rule that the Federal courts enforce the common law of the state in which a cause arises and is tried when such common law is not in conflict with the Constitution and statutes. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; United States v. Swierzbenski, 2 Cir., 18 F.2d 685; The West Jester (Wegstaff v. United States, et al.), 9 Cir., 281 F. 877; 15 C.J.S. Common Law Sec. 16, p. 630.

No cases exactly in point on the issue raised by appellant have been cited to us and we have found none. But there are cases which seem to us to point in the direction of our holding in regard to the employee's liability for his own negligence under Title 45, Sec. 53, U.S.C.A. Sears v. Southern Pacific Co., 9 Cir., 313 F.2d 498 (Syl. 3); Atchison T. & S. F. Ry. Co. v. Seamas, 9 Cir., 201 F.2d 140. We overrule appellant's Points Nos. 1, 2, 3, 4, 8, 9, 10, 12, 13, 14, 16, 17 and 18.

In its Point No. 5 appellant says that it was error for the court to base its judgment on the jury's findings to Special Issue No. 9. The issue was submitted as follows:

'SPECIAL ISSUE NO. 9

'Do you find from a preponderance of the evidence that such act in permitting either chatt, gravel, rocks, mounds of dirt, or debris to remain in the area of the hump where Plaintiff alighted from said caboose, if you have so found in answer to the preceding special issue, was negligence, as defined herein?

'Answer Yes or No.'

The answer of the jury was 'Yes'. In answering Iss...