Texas & N. O. R. Co. v. Sturgeon

• Decision Date: 05 January 1944
• Docket Number: No. 8161.,8161.
• Citation: 177 S.W.2d 264
• Parties: TEXAS & N. O. R. CO. v. STURGEON.
• Court: Texas Supreme Court

Page 264

177 S.W.2d 264

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

No. 8161.

Supreme Court of Texas.

January 5, 1944.

Rehearing Denied February 2, 1944.

Error to Court of Civil Appeals of Eighth Supreme Judicial District; Appeal from El Paso County.

Action by William Jack Sturgeon against the Texas & New Orleans Railroad Company under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Judgment for plaintiff was affirmed by the Court of Civil Appeals, and defendant brings error.

Judgment of the Court of Civil Appeals and of the trial court reversed, and cause remanded.

Baker, Botts, Andrews & Wharton, of Houston, and Kemp, Smith, Goggin & White, of El Paso, for appellant.

Abner S. Lipscomb and W. C. Peticolas, both of El Paso, and Clifton Hildebrand, of Oakland, Cal., for appellee.

TAYLOR, Commissioner.

W. J. Sturgeon, switchman on the T. & N. O. Railroad Company, and respondent here, recovered a personal injury judgment against the company under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., which was affirmed upon appeal.

The jury found that the injury of Sturgeon was proximately caused by the negligent act of Hobson, long field man, in passing from the north to the south footboard of defendant's locomotive in Sturgeon's pathway as the latter was attempting to mount the south footboard on the opposite side of the drawbar. The jury found also that another proximate cause of the injury was the negligent act of the engine foreman, Hutcheson, in mounting the north footboard while Hobson was still occupying same. See the opinion of the Court of Civil Appeals, 177 S.W.2d 340, for a detailed statement of the facts.

The railroad company's principal contentions in its application for writ of error are substantially (a) that there was no evidence,—or at any rate no more than a scintilla, to support the jury's findings of negligence on the part of Hobson and Hutcheson, and on the corresponding issues respectively of proximate cause; and (b) that the Court of Civil Appeals erred in holding that the trial court did not commit reversible error in overruling petitioner's objection to a part of respondent's argument to the jury. Petitioner complained also of the action of the trial court in failing to submit to the jury whether Hobson knew or should have known of Sturgeon's intention to attempt to mount the footboard. The writ was granted upon the point alleging error with respect to petitioner's argument to the jury.

We are confirmed upon final examination of the record in our tentative view that the trial court committed reversible error in refusing to sustain the objection made to the argument, which will presently be discussed. In view of another trial we refrain from discussing the evidence further than to say it raised the issues submitted, and that we are bound by the holdings of the Court of Civil Appeals as to its sufficiency to support the jury's findings. We agree with the Court that respondent's act in attempting to mount the footboard at the time he did was not the sole proximate cause of his injury; also with its holding that whether either Hobson or the engine foreman knew or should have known of Sturgeon's whereabouts and whether he might attempt to mount the footboard, was for the jury to decide.

There was no error on the part of the trial court in failing to submit an issue inquiring whether Hobson or the engine foreman had actual or constructive knowledge that Sturgeon might attempt to get on the footboard. We agree also with the Court of Civil Appeals that petitioner cannot be heard to complain here of failure to submit such issue since it made no request for its submission, and went no further than to object to the questions submitting the issues of negligence and proximate cause on the ground of omission therefrom of the element of knowledge on the part of Hobson and Hutcheson of Sturgeon's intention. Gulf, C. & S. F. R. Co. v. Conley, 113 Tex. 472, 474, 260 S.W. 561, 32 A.L.R. 1183; Texas & N. O. R. Co. v. Crow et al., 132 Tex. 465, 123 S.W.2d 649. See Texas Law Review, Vol. 17, No. 4, p. 459. Rule 279 was so amended on September 1, 1941, as to crystalize into rule form the holding on the point involved in the cases cited.

The definition of "proximate cause" given by the trial court was as follows: "A negligent act, or omission, is a proximate cause of an injury when the same is a direct, efficient or producing cause without which the injury would not have occurred, and from such cause it should have been reasonably anticipated by the party producing same that injury would result naturally and probably therefrom; not necessarily the precise, actual injury, but some like injury likely to result therefrom."

The matter of knowledge on the part of Hobson and the engine foreman with respect to Sturgeon's whereabouts and intention was evidentiary in its bearing upon the controlling issues of negligence and proximate cause. City of Panhandle v. Byrd, 130 Tex. 96, 106 S.W.2d 660. The controlling issues were fairly submitted and there was no reason for submitting other phases of the same issues. Texas Rules of Civil Procedure, Rule 279.

We cannot agree with the Court of Civil Appeal's holding with respect to the following statement made to the jury by counsel for respondent in his closing argument: "I don't think a man on this jury would sell his leg for a hundred thousand dollars." Counsel for petitioner promptly objected to the statement and requested the trial court to instruct the jury to disregard it and not consider it for any purpose. The objection should have been sustained and the requested instruction given. Prompt action on the part of the court in response to the objection and request would have removed the harmful effect. The langauge complained of was subject to the inference that the jury was at liberty in fixing the amount of damage to consider what amount one would sell his leg for. Refusal of the judge to sustain the objection increased the harmful effect of such an inference and constituted reversible error. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478; Foster v. Langston, Tex. Civ.App., 170 S.W.2d 250; Brooks v....