Solgaard v. Texas & N. O. R. Co., A-2436

• Decision Date: 12 April 1950
• Docket Number: No. A-2436,A-2436
• Parties: SOLGAARD v. TEXAS & N. O. R. CO.
• Court: Texas Supreme Court

Page 777

229 S.W.2d 777

149 Tex. 181

SOLGAARD v. TEXAS & N. O. R. CO.

No. A-2436.

Supreme Court of Texas.

April 12, 1950.

Rehearing Denied May 24, 1950.

Critz, Kuykendall, Bauknight & Stevenson, Austin, Markwell & Stubbs, Galveston, for petitioner.

Baker, Botts, Andrews & Parish, Houston, Armstrong, Barker & Bedford, Galveston, for respondent.

GARWOOD, Justice.

Petitioner Solgaard, a Norwegian seaman, as plaintiff, had judgment for damages in the trial court against respondent, Texas & New Orleans Railroad Company for serious personal injuries caused by a freight train of respondent being pushed over him while a pedestrian on Avenue A in the City of Galveston about midnight of September 13, 1947. This judgment was reversed by the Court of Civil Appeals and remanded for a new trial. 223 S.W.2d 665. The first ground of reversal, which was the one most discussed here and below, consisted of the trial court's refusal to submit various issues requested by the respondent railroad company regarding the alleged contributory negligence of petitioner, and we granted the writ of error because of doubt about the correctness of this holding. However, the court below also discussed the matter of whether the verdict was supported by the evidence in so far as it found the accident to have been the proximate result of respondent's negligence. While the language of this discussion or ruling evidently left both litigants in some doubt as to its intent, respondent yet presents it here as a holding of the court below material to our disposition of the case.

Avenue A runs generally east-west along the edge of the commercial waterfront, and the accident occurred somewhere near its intersection with 28th Street or eastwardly thereof between 28th and 27th Streets; these latter streets having their origin at Avenue A and running thence southwardly at right angles to it. The 'avenue' is officially a public way but in this area is not lighted, paved, equipped with sidewalks, or otherwise maintained as a street, is obviously unsuited for vehicular traffic in any direction, and is more or less fully occupied with four railroad tracks, including the one on which petitioner was injured. The respondent and other railroads were, of course, authorized to use the tracks for railroad purposes, and there was no prohibition of any kind against use of the street by pedestrians, who in fact did frequently traverse it both lengthwise and across.

No witness testified to seeing the accident or to seeing petitioner previous thereto. Petitioner himself testified that, being on shore liberty from his ship docked at the port, he returned toward the waterfront around midnight, following 28th Street onto the tracks on Avenue A; that after crossing two or three of these tracks, he heard a noise like the rumbling of a train, though he heard no whistle or bell, and then saw an unlighted train moving toward him from his left, that is from the west, and about ninety or one hundred feet away; that he then turned around and ran back two or three steps and 'across' the track on which the train was approaching, tripped and fell on that track, thus knocked himself unconscious 'before the train hit me' and knew no further details of the accident. Respondent's testimony showed petitioner to have been found unconscious and badly injured very early on the morning of September 14 at a point east of 27th Street or over a block east of where he said he had fallen, but also included circumstances strongly indicating that he had been actually run over at a point near a vacant lot between 27th and 28th Streets and thence dragged by the train eastwardly beyond 27th Street. A single witness for petitioner, L. C. Sheffield, testified rather vaguely to the effect that he found some blood and rags 'at the east side of' and 'right close to' 28th Street, but on cross examination disclaimed to say 'just how far from 28th Street it was'.

Oral argument and further study of the case confirm our earlier view that the Court of Civil Appeals erred in its holding that the trial court should have granted respondent's requested issues in question on the subject of contributory negligence.

The first group of issues involved, comprising Nos. 1, 2 and 3, enquired if petitioner, just before and at the time of the accident, 'had gone to and remained at the place near the railroad tracks between the intersections of 28th Street and 27th Street', whether such conduct, if pursued, was negligence, etc. As regards whatever significance the words describing a location may have in the matter, it must be noted that the court actually did submit issues (Nos. 13-15 of the charge) on whether 'the plaintiff was struck by a train at a point approximately opposite the vacant lot between 27th and 28th Streets', whether he was negligent in being there, etc., which were answered unfavorably to the respondent. We cannot agree with respondent that, even with the inclusion of these latter issues, the charge failed to present the subject of location fairly. In such cases generally, each party is entitled to adequate presentation of all details of fact supported by pleadings and evidence and essential to its own theory of the case. See City of Ft. Worth v. Lee, 143 Tex. 551, 186 S.W.2d 954, 159 A.L.R. 125; Graham v. Gatewood, Tex.Civ.App., 166 S.W.2d 768, er. ref. w. m. But here, as stated, all respondent's own evidence placed the accident in the very locality submitted in Issues Nos. 13-15, and the only complaint is that such issues, unlike requested Issue No. 1, did not include still another theory-that petitioner was struck somewhat to the west and nearer, though not within, the intersection of Avenue A and 28th Street. Considering the elastic word 'approximately' in the submitted issues, the still more elastic and inconclusive testimony of the lone witness of petitioner who is said to place the accident near the east side of 28th Street, and the fact that the latter theory was not the one relied on by either party, we cannot see how respondent was deprived of any valuable right. It is altogether unlikely that the jury, had it disbelieved petitioner's story, which in effect placed the accident within the intersection, would have yet answered Special Issue No. 13, 'No', as it did, on the theory that the accident happened somewhere in between the intersection and 'a point approximately opposte the vacant lot'. We also seriously doubt if the above-mentioned testimony of the witness, Sheffield, was evidence actually raising such a theory as an issue. None of the decisions cited for respondent, including those last above referred to, involve a situation like the present. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517, so far as possibly relevant, simply held that it is error to submit in one issue all of several different acts of contributory...