St. Louis Southwestern Ry. Co. of Texas v. Lowry

• Decision Date: 23 June 1938
• Docket Number: No. 5189.,5189.
• Citation: 119 S.W.2d 130
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. LOWRY et al.
• Court: Texas Court of Appeals

119 S.W.2d 130

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. LOWRY et al.

No. 5189.

Court of Civil Appeals of Texas. Texarkana.

June 23, 1938.

Rehearing Denied July 7, 1938.

Appeal from District Court, Bowie County; R. H. Harvey, Judge.

Action by Arthur Lowry, a minor, appearing by his father, J. A. Lowry, as next friend, and the latter individually, against the St. Louis Southwestern Railway Company of Texas, to recover damages for personal injuries. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Ramey, Calhoun & Marsh, of Tyler, and O. B. Pirkey, of New Boston, for appellant.

Jones & Jones, of Marshall, and J. A. R. Moseley, Jr., of Texarkana, for appellees.

JOHNSON, Chief Justice.

This suit was filed by appellees Arthur Lowry, a minor, appearing by and through his father, J. A. Lowry, as next friend, and J. A. Lowry in his individual capacity, against appellant, St. Louis Southwestern Railway Company of Texas, to recover damages alleged to have been sustained by plaintiffs as the result of certain injuries received by Arthur Lowry the minor, on April 5, 1935, when his leg was caught and mashed between a box car and a bumping post of defendant on its property in the City of Jacksonville, Texas. The bumping post is a structure of concrete and steel placed at the end of defendant's switch-track and serves as a block to prevent its box cars from rolling off the track into the street. The minor, Arthur Lowry, was sitting on the bumping post watching the performance of a street hawker and medicine show man when the defendant in the operation of its train bumped a box car against the bumping post, crushing Arthur Lowry's leg. As grounds for recovery plaintiff alleged that the injuries of Arthur Lowry were received as a proximate result of one or more of the following acts of alleged negligence on the part of defendant, its agents, servants and employees:

"(a) In that the defendant negligently and carelessly operated a car or cars upon and into said bumper in question without giving a signal or warning or an adequate warning of the approach of said car or cars, thereby striking and pinioning Arthur Lowry against the bumper.

"(b) In that the defendant failed to keep any lookout whatever, or any adequate lookout at and before the time of pushing the cars against said bumper.

"(c) In that the defendant well knowing that persons such as plaintiff would be at and about the bumper in question, did negligently and carelessly place certain box cars on said track some distance from said bumper, and carelessly and negligently bring said cars into violent collision with said bumper.

"(d) In that the defendant did negligently and carelessly move other cars or an engine into those cars standing at and near said bumper with such great force and violence as to propel the same into and upon plaintiff.

"(e) In that the defendant negligently and carelessly caused said cars at or near said bumper to be disturbed or moved without an employee of defendant being at and about the forward or advancing end of said cars to warn persons situated as was plaintiff at and about said bumper.

"(f) That it was guilty of negligence in moving the said car without at the time giving warning of its intention to do so."

Defendant's answer contains a general and specific denial of the facts alleged by plaintiff and further pleads:

"(1) Said Arthur Lowry was negligent in climbing and sitting upon defendant's coupler and/or bumping-post at the time and place in question.

"(2) Said Arthur Lowry was negligent in sitting upon defendant's coupler and/or bumping-post in such position as that his leg was placed between said coupler and bumping-post so as to make some injury to him inevitable in the event said coupler should come in contact with said bumping-post.

"(3) Said Arthur Lowry sat upon defendant's coupler and/or bumping-post in a negligent and careless position, to-wit: with his leg extending down between said coupler and bumping-post.

"(4) Said Arthur Lowry was negligent in sitting upon said coupler and/or bumping-post without first ascertaining whether said box cars were loaded or ready to be moved.

"(5) Said Arthur Lowry was negligent in sitting upon said coupler and/or bumping-post without keeping a reasonable lookout or any look-out for the purpose of ascertaining whether said box cars were about to be moved.

"(6) Said Arthur Lowry was negligent in sitting upon said coupler and/or bumping-post without listening for the warning signals given by the defendant before said engine coupled on to said string of box cars.

"(7) Said Arthur Lowry was negligent in sitting upon said coupler and/or bumping-post and in failing to hear the warning which was given by defendant's employees before said engine coupled on to said box cars, thus propelling said rear box car against said bumping-post.

"(8) Said Arthur Lowry was negligent in that when he sat upon said coupler and/or bumping-post he well knew that it would be necessary that defendant move said box cars when they were loaded; that said Arthur Lowry nevertheless negligently placing himself upon said coupler and/or bumping-post and there remaining in a dangerous position without exercising ordinary care to ascertain whether said box cars would be moved while he was in such position.

"Defendant further represents to the court that each and all of the acts and omissions aforesaid, acting separately or concurrently, proximately caused or contributed to cause the alleged injury, if any, to the said Arthur Lowry, and that but for same such alleged injury would not have occurred."

The case was submitted to the jury on special issues accompanied by definitions of terms used in the charge. In the answer to special issues 1 to 11, inclusive, the jury found that defendant was guilty of each of the several acts of negligence alleged by plaintiffs and that each was a proximate cause of the injuries received by Arthur Lowry. In answer to special issues 12 to 24-c, inclusive, the jury found that plaintiff Arthur Lowry was not guilty of contributory negligence in any of the several acts alleged by defendant. Judgment was rendered upon the verdict for plaintiffs in the amount of damages found by the jury to have been sustained by Arthur Lowry and by his father, J. A. Lowry, separately. Defendant has appealed.

Appellant contends that the manner and form in which each of the issues of contributory negligence was framed in the court's charge rendered each of such issues multifarious and duplicitous, in that it made inquiry of "negligence" and of "proximate cause" in the same issue. The court defined contributory negligence as follows:

"By the term `contributory negligence,' as used herein, is meant some act or omission on the part of the injured party which amounts to a want of that degree of care which an ordinarily prudent person of the age, intelligence and experience of such injured party would have exercised under the circumstances existing, and which concurring and acting with the negligence of the defendant, if any, proximately caused the injuries complained of and without which the injuries would not have occurred."

With respect to each act or group of acts or omissions alleged by defendant against plaintiff as constituting contributory negligence on the part of plaintiff the court either assumed (in favor of defendant) that plaintiff had committed the act, or made inquiry in a separate issue as to whether plaintiff had committed such act. Then upon such assumption, or affirmative finding, the court made inquiry as to whether the plaintiff in committing the act was guilty of contributory negligence. In submitting the first group of facts alleged by defendant and raised by the evidence as constituting contributory negligence on the part of plaintiff the court asked the jury questions 12 and 13, reading as follows:

"No. 12: Do you find from a preponderance of the evidence that Arthur Lowry was guilty of contributory negligence in climbing upon defendant's coupler at the time and place in question? Answer `Yes' or `No.'" (The jury answered "No.")

"No. 13: Do you find from a preponderance of the evidence that Arthur Lowry was guilty of contributory negligence in climbing upon defendant's bumping post at the time and place in question? Answer `Yes' or `No'." (The jury answered "No.")

The above questions exemplify the remaining questions contained in the court's charge submitting issues of contributory negligence. It is contended by appellant that question No. 12 requires the jury to pass upon two ultimate fact issues in one question, namely, "negligence" and "proximate cause"; and that failure to submit same in two questions inquiring (1) whether plaintiff in climbing upon the bumping post was guilty of negligence, and (2) whether such negligence was a proximate cause of his injuries was reversible error. Like objections and exceptions were leveled at question No. 13 as well as at the remaining questions submitting contributory negligence as one ultimate issue. We do not agree with appellant's contention.

Appellant mainly relies on the case of Kasch v. Anton, Tex.Civ.App., 81 S.W.2d 1097. There are expressions in the Kasch Case, in accord with appellant's contention, that the issue of contributory negligence should be submitted in two questions inquiring (1) whether plaintiff was guilty of negligence in committing the act, and (2) whether such negligence was a proximate cause of the injury. However, the special issue which the court had under consideration in that case reads as follows (page 1099):

"Do you find from a preponderance of the evidence, that Herman Anton was guilty of contributory negligence, as that term is hereinbefore defined, in failing (if he did) to keep a proper lookout as he continued toward the intersection after seeing the Flores truck?"

The court correctly condemned that question. It is no more than a mere hypothetical question, an answer to which,...