San Antonio & A. P. Ry. Co. v. Behne

Decision Date01 June 1921
Docket Number(No. 163-3159.)
Citation231 S.W. 354
CourtTexas Supreme Court
PartiesSAN ANTONIO & A. P. RY. CO. v. BEHNE et ux.

Action by Albert Behne and wife against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (198 S. W. 680), and defendant brings error. Judgments of the district court and Court of Civil Appeals reversed and rendered.

Henderson, Kidd & Henderson, of Cameron (Boyle, Ezell, Houston & Grover, of San Antonio, of counsel), for plaintiff in error.

U. S. Hearrell and R. B. Pool, both of Cameron, for defendants in error.

McCLENDON, P. J.

This action was brought by Albert Behne and wife as plaintiffs, against the San Antonio & Aransas Pass Railway Company, as defendant, to recover for the death of their son Ed Behne, who was drowned by being thrown from a tree in which he had taken refuge from the flood waters of Elm creek; the tree having been struck and felled by a bridge of defendant company, which had been washed by the flood waters against the tree.

The cause was tried before a jury upon special issues, and upon the answers by the jury of all issues favorably to plaintiffs, judgment was rendered for the latter. This judgment was affirmed by the Court of Civil Appeals. 198 S. W. 680.

Liability is predicated upon the failure of the railway company in constructing its roadbed and tracks to provide the necessary drainage in accordance with the natural lay of the land, as required by statute (R. S. art. 6495).

The controlling question is whether the failure of the railroad company in this particular was the proximate cause of the death of plaintiff's son. The Court of Civil Appeals, in an elaborate opinion, has given a very full and accurate statement of the pleadings and evidence. In the conclusion we have reached, which is that the complained of wrongful acts of defendant were not, in contemplation of the law, the proximate cause of the drowning of the plaintiffs' son; the following statement of the facts, which are in the main undisputed, will suffice to a clear understanding of that issue:

Elm creek at the point of intersection with defendant's railway flows in an easterly direction —the railway at that place running approximately north and south. The valley of Elm creek is about 4,000 feet in width. Across this valley the railway beginning at the south was constructed upon a solid earth dump some 6 or 7 feet high, extending from the high-water mark on the south to a distance of about 2,132 feet. On the north side of the valley was a similar dump or embankment, extending about 846 feet. Between these dumps was the bridge proper across the channel of the creek, 154 feet in length, and trestle work connecting with the bridge, and to the north of it, extending some 832 feet to south end of the north dump, leaving an open space, represented by the length of the bridge and trestle work, of approximately 982 feet, or about one-fourth of the width of the valley. The bridge proper was a few feet higher than the dump. Just below and to the east of the railway was an open tract of sparsely wooded land, containing some six or seven acres through which the creek meandered, and through this tract extended a public road, the regular thoroughfare from Cameron to Ben Arnold. The railway had been constructed for quite a number of years, during which time there had been a number of floods as high as that in question, the waters of which had run over the dumps on either side of the bridge, and on several occasions these dumps had been washed away; but the bridge and track had always remained intact.

On the occasion in question, Ed Behne, with two of his brothers and an uncle, had driven from their home some miles distant to the open tract of land below the railway, unhitched their team in the creek bottom, and were fishing. They expected to camp there that night. About 7 o'clock in the evening a heavy rain came up and the creek began to rise rapidly. In a few minutes they began preparation to leave by hitching up their team, but before they could get out of the creek bottom, the water had risen so rapidly that they were compelled to take refuge in the trees. They had been in the trees some 30 minutes when the railroad bridge and a part of the track was washed away and struck the trees in which they had taken refuge. Two of the Behne boys and their uncle were drowned. The third Behne boy, Manuel, succeeded in reaching another tree, from which he was rescued the following day. The evidence, though conflicting, was sufficient, we think, to warrant the jury finding that the flood was not unprecedented, either in height or in the rapidity with which the water rose. It was clear, however, from the evidence that in the rapidity with which the water rose and the force with which it struck the railway embankment, trestle, and bridge, it was, at all events, quite unusual. There was a great deal of testimony upon this point, but it is not necessary to notice it in detail. The evidence showed that the open tract upon which the Behne boys and their uncle were fishing was frequently used by campers and camping parties, and was often resorted to during the fishing season by fishermen, and that the public road running through it was frequently used. It was also in evidence that Elm creek was subject to sudden rises and that during seasons of flood neither human beings nor animals made use of the flooded area of the open tract of land, or of the roadway.

The holding of the Court of Civil Appeals is to the effect that the statute, noncompliance with which is the basis of the suit, was enacted for the protection of persons, as well as property, and that its violation constituted a wrongful act as a matter of law and imposed liability for any injury which could be traced to such unlawful act, regardless of whether the injury were one of a kind or nature which might have been foreseen or anticipated. As we construe the opinion of the Court of Civil Appeals, a distinction is drawn between an act which is wrongful or negligent per se, as in violation of statute, and one which results from a failure to exercise ordinary care, in so far as the doctrine of anticipation of injury, as applied to proximate cause, is concerned.

The conclusion thus reached is not in accord with the holdings of our Supreme Court. We do not find that any distinction is drawn as regards the rule that liability for a wrongful act is limited to such injuries as are proximately caused by such wrongful act, whether the act be wrongful per se, as for the failure to comply with a statutory duty, or wrongful at common law, as being a failure to exercise ordinary care. The difference between the two classes of wrongful acts rests solely in the method of determining whether they be wrongful. When it is shown that a statute has been violated, wrongfulness or negligence follows per se, as a matter of law; whereas, if the dereliction complained of depends for its wrongful character upon the principles of the common law, it is usually a question of fact whether there has been a failure to exercise ordinary care.

When it has been once determined that the act or omission complained of is wrongful or negligent, whether as a result of failure to observe a statutory or common-law duty, liability, in either case, is limited to proximately caused injuries. And the rules for determining proximate cause are the same in either case. Railway v. Barry, 98 Tex. 250, 83 S. W. 5; Burnett v. Fort Worth Co., 102 Tex. 31, 112 S. W. 1040, 19 L. R. A. (N. S.) 504; Railway v. Wilkes (Tex. Civ. App.) 159 S. W. 126; Railway v. Dobbins (Tex. Civ. App.) 40 S. W. 861; Waterman Lumber Co. v. Beatty, 110 Tex. 227, 218 S. W. 363.

Quoting from the Burnett Case, above:

"It is almost universally held that the violation of a statutory duty is negligence per se. But, as we understand it, this is the difference between negligence at common law, usually a question of fact, and the violation of a statutory duty—`only...

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