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

• Decision Date: 11 April 1936
• Docket Number: No. 2896.,2896.
• Citation: 94 S.W.2d 268
• Parties: TEXAS & N. O. R. CO. v. BILLINGSLEY et al.
• Court: Texas Court of Appeals

94 S.W.2d 268

TEXAS & N. O. R. CO. v. BILLINGSLEY et al.

No. 2896.

Court of Civil Appeals of Texas. Beaumont.

April 11, 1936.

Rehearing Denied May 20, 1936.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Suit by A. M. Billingsley and others against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, defendant appeals.

Reversed and rendered.

Duff & Cecil, of Beaumont, for appellant,

Howth, Adams & Hart, of Beaumont, for appellees.

WALKER, Chief Justice.

The railroad track of appellant, Texas & New Orleans Railroad Company, runs east and west through the town of Waller, Waller county, Tex. The depot is on the south side of the track and the Goodrich hotel on the north side. About 9 o'clock p. m. of the 27th day of May, 1933, for the purpose of going to a barber shop on the south side of the railroad track, A. T. Billingsley walked from the Goodrich Hotel to the public railroad crossing near the depot, which, at that time, was blocked by one of appellant's eastbound freight trains. Billingsley stopped near the crossing for the train to clear the crossing that he might go on to the barber shop. While standing there at the crossing, he was struck by an open swinging door on a refrigerator car in the passing train, fifteen or twenty cars back from the engine, and instantly killed.

This suit was filed by A. M. Billingsley and his wife, Mrs. A. M. Billingsley, the father and mother of the deceased, and Alfred Billingsley and Pauline Billingsley, minors, a brother and sister of the deceased, to recover damages for the death of A. T. Billingsley, alleging generally, as appellees, plaintiffs below, construe their petition, that appellant was guilty of negligence in operating its train with a car door in such a loose or unfastened condition that it swung out from the side of the car while the train was in motion, and that, as a proximate result of this negligence, A. T. Billingsley was struck by the swinging car door and killed. Appellant answered by general demurrer, general denial, and by pleas of six specific acts of contributory negligence against the deceased. The evidence offered by appellees went no further than to sustain the fact conclusions stated above; it failed to show (a) when or how the defects in the door occurred (b) the ownership of the refrigerator car with the defective door; (c) how long this car had been in appellant's possession at the time Billingsley was killed; (d) where it was put into the train; (e) from whose possession it was received; (f) and whether, at the time Billingsley was killed, this car had been in appellant's possession a sufficient time for it to discover the defect in the door; (g) there was in evidence no specific fact from which the jury could determine that, in the exercise of ordinary care, it should have discovered the defects in the door before Billingsley was struck and killed. Answering special issues, the jury found against appellant the issues of negligence charged against it by appellees' petition, and acquitted the deceased of all acts of contributory negligence. Appellant has duly prosecuted its appeal from the judgment entered in favor of appellees on the verdict of the jury.

Opinion.

For the purposes of this opinion, as stated above, we concede appellees' construction of their petition that they pleaded against appellant only general negligence; that they did not allege specific acts of negligence, but negligence only in operating the train with a car door in such an unfastened condition that it swung out from the side of the car; and that they did not allege any particular defect which caused that condition to exist. It is the contention of appellant that appellees pleaded specific acts of negligence, and, therefore, they cannot invoke the maximum of res ipsa loquitur in support of their judgment. If the facts of this case were sufficient to invoke that maxim, appellant's construction of the pleadings, if correct, would merely operate to reverse the judgment of the lower court and to remand the case for a new trial. However, as we have reached the conclusion that the judgment of the lower court must be reversed and judgment here rendered in favor of appellant, we are giving the petition all the intendment claimed for it by appellees.

On the construction we have given appellees' petition, the question presented by this appeal is whether or not the evidence was sufficient as a matter of law to constitute a cause of action against appellant. On authority of Texas & Pacific Ry. Co. v. Endsley, 103 Tex. 434, 129 S.W. 342, this question must be answered in the negative. The facts of that case are the very facts of this case. The facts, which the evidence in that case failed to disclose, are the very facts the evidence in this case failed to disclose. In that case, holding as a matter of law that the evidence was not sufficient to constitute a cause of action against the railroad company, the Supreme Court said:

"The fact that the injury occurred, and that such injury resulted from a defective condition of the defendant's car, is not sufficient to establish the necessary fact that the railroad company was negligent in permitting the door to be in that condition. Gulf, C. & S. F. Ry. Co. v. Kizziah, 86 Tex. 81, 23 S.W. 578; Houston & T. C. Ry. Co. v. Barrager (Tex. Sup.) 14 S.W. 242; Missouri, K. & T. Ry. Co. v. Thompson, 11 Tex.Civ.App. 658, 33 S.W. 718. In the Barrager Case, above cited, damages were claimed for an injury received by a brakeman through the pulling out of a drawhead, and this court said: `To say that the burden is upon the servant to show negligence upon part of the master when he seeks to recover damages for injuries resulting from defective machinery is but to announce the elementary proposition that the plaintiff must prove his case; and we are of opinion that negligence on part of a railroad company is not to be inferred from the mere fact that a drawhead has become detached in the operation of moving the train. Mobile & O. R. Co. v. Thomas, 42 Ala. 672. So that it seems to us that upon his main proposition the plaintiff has failed in his case.'"

No decision of any court in Texas has been cited to us criticizing the Endsley Case. It was cited by this court as controlling in Texas & N. O. Ry. Co. v. Smith, 285 S.W. 913, 917, and Hawthorne v. Texas & N. O. Ry. Co., 84 S.W.(2d) 1015. Texas Law Review, Vol. XIV, No. 2, February, 1936, p. 277, presents a most interesting note on the Hawthorne Case. It was quoted by us in full in our recent opinion on rehearing in Texas & N. O. Ry. Co. v. Beard, 91 S.W.(2d) 1080. The Endsley Case was also cited with approval by the Fort Worth Court of Civil Appeals in Gulf, C. & S. F. Ry. Co. v. Riordan, 146 S.W. 711, Ft. Worth & D. C. Ry. Co. v. Gatewood, 185 S.W. 932, and Texas & P. Ry. Co. v. Greene, 291 S.W. 929, 931, affirmed by the Supreme Court, 299 S.W. 639; by the Texarkana Court of Civil Appeals in Vernon Cotton Oil Co. v. Catron, 137 S.W. 404, and St. Louis S. W. Ry. Co. v. Tune, 158 S.W. 238, 241; by the Amarillo Court of Civil Appeals in Gamer Co. v. Gammage, 162 S.W. 980, 988, reversed by the Supreme Court, 209 S.W. 389, but without criticizing the Endsley Case; by the Galveston Court of Civil Appeals in Houston E. & W. T. Ry. Co. v. Hickman, 207 S.W. 550, 551. In Texas & P. Ry. Co. v. Greene, supra, the plaintiff was injured by a swinging door of a passing train; the Court of Civil Appeals distinguished that case from the Endsley Case upon the ground that appellant was guilty of negligence in not inspecting the defective car, and on that distinction affirmed the judgment of the lower court. A writ of error was granted in that case, and in affirming the judgment of the Court of Civil Appeals, the Commission of Appeals gave effect to the negligence found by the Court of Civil Appeals; it was said:

"At the time the door swung out and struck the plaintiff, the train had moved but a few hundred feet from where it had been made up and left standing. These circumstances furnish some evidence of the fact that the door was in the same loose and unfastened condition when the train crew made the inspection they did as it was when it swung out and struck the plaintiff. With this fact found by them, which is presumed to have been done, it was the further province of the jury, in weighing the testimony, to determine that the loose and dangerous condition of the door was discoverable to the defendant and its servants, by the exercise of ordinary care, and that the defendant was negligent in operating its train with one of the cars in the train in that condition."

Appellees would distinguish the case at bar from the Endsley Case on the following grounds: (a) In this case appellant owned and operated the train. There is no merit in this point. The record in neither case raised the issue that the railroad company owned each and every freight car in the train. (b) Appellees contend that the refrigerator car in this case was put in the train at some point west of the town of Waller. That is not a correct construction of the facts. The record shows only that the defective...