Scott v. Atchison, T. & S. F. R. Co.

• Decision Date: 04 January 1978
• Docket Number: No. B-6648,B-6648
• Citation: 572 S.W.2d 273
• Parties: Allen J. SCOTT, Petitioner, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Respondent.
• Court: Texas Supreme Court

Page 273

572 S.W.2d 273

Allen J. SCOTT, Petitioner, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Respondent.

No. B-6648.

Supreme Court of Texas.

Jan. 4, 1978.

Rehearing Denied June 7, 1978.

Helm, Pletcher, Hogan & Burrow, J. Donald Bowen, Houston, H. A. Coe, Jr., Kountze, for petitioner.

O'Brien & Richards, Chilton O'Brien, Beaumont, McLeod, Alexander, Powell & Apffel, Inc., Galveston, for respondent.

DANIEL, Justice.

This appeal involves the adequacy of issues and instructions submitted to the jury in a personal injury suit brought under the Federal Employers' Liability Act, 45 U.S.C.A., § 51 et seq. Plaintiff, Allen J. Scott, alleged that his injuries were caused by negligent acts of his employer, The Atchison, Topeka and Santa Fe Railway Company, while he was in the course and scope of his employment as a brakeman. Scott's injuries occurred when a freight train derailed at a portion of the roadbed which was washed out by a heavy rainstorm. Based upon an answer favorable to the plaintiff on one broadly submitted negligence issue, the trial court rendered judgment for the plaintiff. The Court of Civil Appeals reversed and remanded on various grounds relating to the trial court's submission of the case to jury. 551 S.W.2d 740. We affirm the judgment of the Court of Civil Appeals.

The evidence shows that during the late afternoon and early evening of June 5, 1973, an unprecedented rainstorm struck north of the railroad company's track between Somerville and Silsbee in the vicinity of Plantersville. It resulted in the flooding of Caney Creek near the location of the railroad's Bridge 46.3. Portions of the roadbed and ballast beneath the tracks near Bridge 46.3 were washed out. The washout was unknown to plaintiff or other employees on the defendant's freight train when it left Somerville at about 6 p. m. or at anytime before the train ran into the washed out area about 9 p. m. The accident caused plaintiff to sustain injuries to his back, neck, and left knee.

Plaintiff Scott originally alleged, in very general terms, that his injuries were caused, in whole or in part, by the negligence of defendant "in failing to provide plaintiff with a reasonably safe place in which to do his work." The railroad filed exceptions to the generality of such allegations, and thereafter Scott filed an amended petition in which he added three specific allegations as follows:

"The track and supporting bed and ties were faulty in construction, materials and or maintenance since they allowed this train to derail on the occasion in question. Defendant also violated Article 6328 of Vernon's Civil Statutes Annotated and such violation was negligence and was a cause, in whole or in part, of the accident and injuries to Plaintiff. In addition, Defendant violated the provisions of the Boiler Inspection Act (45 U.S.C.A. § 23 ) in that the engine Plaintiff was riding in was not safe, all of which was a cause in whole or in part of his injuries." ¹

The railroad company filed a general denial and an affirmative written pleading in which it alleged that the accident and Scott's injuries were caused solely by an "Act of God" in the form of an unprecedented rainfall which caused water to flood Caney Creek and wash out the roadbed and tracks at the place of the derailment.

There was more than a scintilla of evidence in support of the specific allegations of both parties, except as to plaintiff's allegation that the track and supporting bed Upon the request of the plaintiff and over the objections of the defendant, the case was submitted to the jury on one broad negligence issue followed by a conditional causation issue, and one specific issue on the alleged unsafe condition of the door latch on the locomotive, followed by related conditional issues. ² The trial court refused to submit the railroad's request for a special issue on sole causation by an "Act of God" or to correct its explanatory instructions on that aspect of the case when they were objected to by the railroad.

and ties were faulty in construction, materials and/or maintenance. We find no evidence in support of the latter allegation.

The Court of Civil Appeals, with one member dissenting, reversed and remanded upon a holding that the railroad's defensive issue on "Act of God" should have been submitted and that Special Issue No. 1 was too broad in that it did not limit the jury's consideration to those acts or omissions which were raised by the written pleadings and the evidence. Rule 277. Although federal law governs substantive rights of the parties in F.E.L.A. cases, such cases filed in our state courts are tried in accordance with our own applicable Rules of Civil Procedure. Missouri Pacific Railroad Company v. Cross, 501 S.W.2d 868, 870 (Tex.1973).

The Negligence Issue

Plaintiff Scott insists that the Court of Civil Appeals erred in sustaining defendant's objection to the manner in which Special Issue No. 1 was submitted. He argues that the holding is in conflict with Members Mutual Insurance Co. v. Muckelroy, 523 S.W.2d 77 (Tex.Civ.App.1975, writ ref'd n. r. e.), in which the court approved a broad form of submission of several specifically alleged acts of negligence of the parties as follows: "Whose negligence, if any, do you find from a preponderance of the evidence proximately caused the collision made the basis of this suit?" The answer space followed with (a) designating the name of the defendant, (b) the name of the plaintiff, and (c) "Both," with blank spaces for the jury to indicate its findings. 523 S.W.2d at 79. However, the cases are distinguishable in that the Muckelroy case apparently had some evidence in support of all of the alleged acts of negligence. The same was true in Mobil Chemical Company v. Bell, 517 S.W.2d 245, 255 (Tex.1974), relied upon in Muckelroy, in which we explained the broad submission permitted by Rule 277 as applying in ordinary negligence cases "where several specific acts of negligence are alleged and evidence as to each is introduced . . . ." This is not true in the present case. Furthermore, the defendant's complaint in Muckelroy was that the broad issue failed to limit the jury to the specific acts of negligence Alleged, without any complaint that it failed to limit the jury to facts which were alleged And proved. In the present case, the railroad's objection complains that the broad submission of Special Issue No. 1:

". . . permits the Jury to . . . hold the Defendant liable upon some basis neither pled nor proved by Plaintiff . . . . Such Issue should be limited to the acts or omissions pled by Plaintiff to constitute negligence and concerning which there is some proof to support the submission of an issue."

This is the first time that such two-fold objection to a broad and unlimited submission of negligence has been clearly presented to this Court since the 1973 amendment to Rule 277. This case is different from Mobil Chemical, supra, in two respects. First, as heretofore indicated, all alleged specific acts of negligence were not supported by evidence. Secondly, there are facts in evidence in the present case from Special Issue No. 1 simply allowed the jurors to make their own determination as to whether "on the occasion in question the railroad was negligent," without regard to whether the acts or omissions upon which they reached a 10 to 2 answer had been raised by the pleadings and proof. This is contrary to the requirement in Rules 277 and 279 that special verdict submissions shall be only upon controlling issues that are raised "by the written pleadings and the evidence." This requirement was unaffected by the 1973 amendment to Rule 277. The pleadings of the parties still furnish the blueprint for the charge. ³ In the absence of trial by consent, a judgment not supported by the pleadings is erroneous. City of Fort Worth v. Gause, 129 Tex. 25, 101 S.W.2d 221 (1937).

which negligence might have been inferred by the jury although not pleaded. For instance, incident to other proof, there was evidence that a storm warning for the area in question had been broadcast on television at about 5 p. m., an hour before the train left Somerville, and nearly four hours before the train reached the point of derailment; the railroad has a storm warning system but did not relay any warning of the rainstorm which had occurred in the area prior to the train reaching the washout; no inspection of the tracks was made during the period of an hour after the storm and before the train reached the washout. The jury could have inferred from other evidence and circumstances that the train was being operated at an excessive rate of speed or that the brakes were not applied soon enough to avoid the derailment.

Under Rule 277, the trial court has the discretion to submit an issue broadly, including the combination in one issue of several acts or omissions which may be alleged to constitute negligence. However, when one or more pleaded acts or omissions are unsupported by evidence and the record contains evidence of other possible negligent acts or omissions which were not pleaded, failure to limit the broad ultimate fact issue to acts or omissions which were raised by both pleadings and proof violates Rule 277 and is error. In view of the wide variance between the pleadings and unpled facts and circumstances from which the jury could have inferred that the railroad was negligent, such error was reasonably calculated to and probably did cause the rendition of an improper judgment. Rule 434. Accordingly, the Court of Civil Appeals properly reversed and remanded the case for a new trial.

It has been suggested that the absence of the necessary limiting language in Special Issue No. 1 can be cured on retrial by an accompanying instruction along the following lines:

In determining negligence you may consider only those acts or omissions which are both alleged in the pleadings and supported by the evidence.

Under the facts and...