Payne v. Shepler

• Decision Date: 03 June 1922
• Docket Number: (No. 821.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 243 S.W. 538
• Parties: PAYNE v. SHEPLER.
• Court: Texas Court of Appeals

243 S.W. 538

PAYNE v. SHEPLER.

(No. 821.)^*

Court of Civil Appeals of Texas. Beaumont.

June 3, 1922.

Rehearing Denied June 21, 1922.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Action by Mrs. Lola E. Shepler, temporary administatrix of the estate of J. E. Shepler, deceased, against John Barton Payne, Agent. From judgment for plaintiff, defendant appeals. Affirmed.

Andrews, Streetman, Logue & Mobley, of Houston, for appellant.

Randell & Randell, of Sherman, and Vinson, Elkins & Wood, of Houston, for appellee.

HIGHTOWER, C. J.

This was a suit by Mrs. Lola E. Shepler, temporary administratrix of the estate of J. E. Shepler, deceased, for the benefit of herself and the minor children of herself and said J. E. Shepler, against John Barton Payne, Federal Agent of Railroads, for damages on account of the death of said J. E. Shepler, the husband and father.

Plaintiff alleged, substantially, that J. E. Shepler was a locomotive fireman on a passenger train engaged in interstate commerce on the St. Louis, Brownsville & Mexico Railroad, and that on October 29, 1919, the train was wrecked near the town of Marianna between Houston and Brownsville near or at a switch, and that J. E. Shepler sustained injuries which shortly after resulted in his death. It was alleged, substantially, that defendant was negligent in the following respects, and that such negligence proximately caused Shepler's death: (a) That the roadbed and track at the place of the wreck was defective and insecure and unsafe; (b) that the guard rail, where the switch connects with the main line, was defective, insecure, insufficient, and unsafe; (c) that the rate of speed at which the train was traveling at the time, in view of the insecure, unsafe, and defective condition of the track, and insecure, insufficient, and defective condition of the guard rail, was excessive and dangerous.

Defendant answered by general demurrer, general denial, plea of assumed risk, and specially pleaded that the wreck which resulted in and caused the death of Shepler was not because of any defective track or guard rail or the rate of speed at which the train was traveling, but that the sole proximate cause of the wreck and the consequent death of Shepler was a broken flange on the rear left tender wheel, and that this was a latent defect in the wheel that was not discovered, and could not have been discovered, by defendant by the use of ordinary care prior to the wreck, and that therefore defendant was not liable.

The case was tried with a jury, and was submitted upon the following special issues, with the following answers thereto:

"Special issue No. 1: Do you or not find that the track at or near the place, and at the time of derailment, was defective, unsafe, and insecure? You will answer `Yes' or `No.'" The answer was: "Yes."

"Special issue No. 2: If you have answered the foregoing issue Yes, you will then answer this question: Was such condition due to the negligence of the Director General, his servants or employés? You will answer `Yes' or `No.'" The answer was: "Yes."

"Special issue No. 3: If you have answered the foregoing issue in the affirmative, then state: Was such negligence a proximate cause of the injury and death of the deceased, J. E. Shepler? You will answer `Yes' or `No.'" The answer was: "Yes."

"Special issue No. 4: Do you find that at the time and under the circumstances under which the wreck occurred the train in question was being operated at a greater rate of speed than an ordinarily prudent person would have operated it? You will answer `Yes' or `No.'" The answer was: "Yes."

"Special issue No. 5: If you have answered the foregoing special issue in the affirmative, then state: Was such rate of speed at which said train was being operated at the time and place in question a proximate cause of the injury and subsequent death of J. E. Shepler? You will answer `Yes' or `No.'" The answer was: "Yes."

"Special issue No. 6: Do you or not find that the guard rail in question at the time of the derailment was defective, unsafe, and insecure? You will answer `Yes' or `No.'" The answer was: "Yes."

"Special issue No. 7: If you have answered the preceding issue in the affirmative, and in that event only, then answer this special issue: Did such condition as you have found constitute negligence? Answer `Yes' or `No,' as you may find the fact to be." The answer was: "Yes."

"Special issue No. 8: If you have answered the preceding issue in the affirmative, then state: Was such negligence a proximate cause of the injury and subsequent death of J. E. Shepler? Answer `Yes' or `No.'" The answer was: "Yes."

"Special issue No. 9: Do you or not find that the broken flange on the tender wheel, about which evidence has been introduced, was a proximate cause of the injury to, and subsequent death of, the deceased? You will answer, `It was,' or, `It was not,' as you find the fact to be." The answer was: "It was not."

"Special issue No. 12: What sum of money would be a fair and adequate compensation to the deceased, J. E. Shepler, if he had lived, for the physical pain and mental anguish, if any, suffered by him as the result of his injury?" The jury answered: "$5,000.00."

"Special issue No. 13: What sum of money, if paid in hand at this time, will fairly and adequately compensate the surviving wife and children for the pecuniary loss of each of them, if any, which you believe from the evidence they have sustained by reason of the death of J. E. Shepler, based upon their reasonable expectation of pecuniary benefit, if any, from the continuance of his life had he lived." The jury answered: "$25,000.00."

Upon the verdict of the jury judgment was rendered in favor of plaintiff for $30,000, and after the motion for new trial had been presented and overruled, the defendant in due time prosecuted his appeal to the Court of Civil Appeals for the First Supreme Judicial District, and by order of the Supreme Court the cause was transferred to this court.

Appellant's first contention is that the verdict of the jury upon the issues of negligence of the defendant as a proximate cause of the death of plaintiff's decedent is in all respects contrary to and not supported by the great weight and preponderance of the evidence. It is not contended that the jury's verdict, finding appellant guilty of negligence, is not supported by the evidence as to any of the grounds alleged, but the specific contention is that the jury's finding that said acts of negligence, singly or together, became the proximate cause of Shepler's death was without support in the evidence, it being contended by appellant that the overwhelming weight and preponderance of the evidence showed that the broken flange on the tender wheel was the sole proximate cause of the wreck and of Shepler's death. Appellant attempted to establish this contention by the evidence of the following named witnesses, who testified as experts: J. W. Walters, appellant's assistant superintendent; J. La Valle, appellant's mechanical superintendent; J. W. Harris, appellant's roadmaster; J. C. Nolan, appellant's division superintendent; Fred J. Hawn, appellant's assistant division superintendent. Each of these witnesses was shown to be qualified to testify as an expert, and they were permitted to do so, and each testified that in his opinion the wreck was caused by reason of a broken flange on the rear left tender wheel, and not by reason of any defective condition in the track or roadbed, or by reason of any defective condition of the guard rail, or by reason of the speed of the train at the time. These conclusions on the part of said witnesses were arrived at by what they found upon the ground after the wreck, that is the location of the train's equipment, the position in which the wrecked portions of the train were found, the marks upon the ties and rails at the point, etc. Each of these witnesses went into great detail in stating the facts upon which his conclusion was based, but such facts and details are entirely too lengthy to be incorporated in this opinion, and we shall not undertake to mention them. The statement of facts is very voluminous, consisting of nearly 340 pages, and we have read the entire statement, and have reached the conclusion that the evidence as a whole, bearing upon the issue of the proximate cause of this wreck, warranted and fully sustains the verdict of the jury that the defective condition of the track and the defective condition of the guard rail and the rate of speed at which the train was traveling were each and all a proximate cause of the wreck and the consequent death of Shepler. We, therefore, overrule this contention.

It is next contended that the verdict, to the effect that the broken flange on the rear wheel of the tender was not a proximate cause of the wreck, is contrary to the great weight and preponderance of the evidence. We overrule this contention. But if it should be conceded that the broken flange on the wheel was a proximate cause, still it would not defeat a recovery by the plaintiff in this case, in view of the finding by the jury that appellant was guilty of negligence in other respects, which were also proximate causes of the wreck.

The next contention is:

"The court should have granted a new trial, because of misconduct of counsel for plaintiff in interrupting counsel for defendant while arguing the case to the jury, and after making the interruptions in pointedly and repeatedly asserting that there was some arrangement between the federal government and the railway corporation whereby the government would be reimbursed should it have to pay out any money in satisfaction of the judgment in this case; all of which and the exception thereto more fully appears from the bill of exception No. 1."

The matter here complained of will be fully understood by quoting bill of exception No. 1, which was as follows:

"Be it remembered that upon the trial of the above...