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

• Decision Date: 01 December 1931
• Docket Number: No. 9606.,9606.
• Citation: 46 S.W.2d 398
• Parties: TEXAS & N. O. R. CO. v. EWING et al.
• Court: Texas Court of Appeals

46 S.W.2d 398

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

No. 9606.

Court of Civil Appeals of Texas. Galveston.

December 1, 1931.

Rehearings Denied February 4, 1932.

Appeal from District Court, Grimes County; S. W. Dean, Judge.

Action by Mrs. Gladys Ewing and another against the Texas & New Orleans Railroad Company. Judgment for plaintiffs, and defendant appeals.

Reversed and remanded.

Baker, Botts, Andrews & Wharton, of Houston, Lewis & Lewis, of Navasota, and Frank A. Woods, of Franklin, for appellant.

J. B. Leigh, of Navasota, and Dean & Humphrey, of Huntsville (on motion for rehearing), for appellees.

GRAVES, J.

The appellees, Mrs. Ewing and minor daughter, Katherine, recovered of appellant an aggregate of $24,500 in damages, as for its negligence in proximately causing the death of their husband and father, E. S. Ewing, whose body was completely cut in two underneath one of its passenger trains at or near its station in the town of Navasota about 1 o'clock on the night of August 23, 1929; the remains — severed at the waist — were found lying face downward right near the water crane alongside appellant's track, south of where the Santa Fé railroad crossed it, the upper portion being inside of, and the lower one just outside of, the west rail.

The judgment was entered on a jury's verdict in response to special issues that found adversely to the railroad company on all the inquiries propounded touching either negligence upon its part, or contributory negligence upon that of the deceased, and fixed the jury's estimate of the pecuniary loss suffered by the two appellees.

In this court appellant contends, first, that it should have had a peremptory instruction below "because there is no affirmative proof of causal connection between the death of deceased and negligence of appellant," and, then, that a reversal should ensue because of errors in the admission of testimony from the witnesses Sandel and Pierce, the definition of "proximate cause," the instructions given in connection with and the submission of the special issues in numerous particulars, and in the final refusal of a new trial because of alleged misconduct of certain jurors "in discussing during their deliberations extraneous matters pertaining to controverted issues in the case."

The argument for a summary instruction — seemingly proceeding from an erroneous idea of what the state of the evidence should be to require it — is regarded as unsound; for instance, the brief urges: "As to whether this evidence is sufficient to show negligence, we think there is grave doubt. But, assuming that it is sufficient to support one or more of the grounds of negligence relied upon by appellees, we most earnestly submit that it is wholly insufficient to show by a preponderance of proof that such negligence was the proximate cause of the death of deceased. There is no affirmative evidence sufficient to show any causal connection between the negligence of appellant and the death of deceased."

The principle as thus stated is not conclusive of the matter. Were it conceded that there was neither sufficient affirmative evidence alone — nor even a preponderance of that of all kinds — showing a proximately causal connection between appellant's negligence and Mr. Ewing's death, still such a withdrawal of the whole case from the jury would have been improper, if — the question of proximate cause being itself not only one of fact like any other, but likewise determinable by circumstantial as well as direct proof — there were yet on the whole enough facts and circumstances to raise an issue over the existence of such connection. It is only when no such issue of fact remains that a peremptory instruction is permissible. Railway v. McGinty (Tex. Civ. App.) 293 S. W. 302; Railway v. Porter, 73 Tex. 304, 11 S. W. 324; Railway v. Boone, 105 Tex. 188, 146 S. W. 533; Electric Ry. Co. v. Stewart (Tex. Civ. App.) 217 S. W. 1081; Electric Express & Baggage Co. v. Ablon, 110 Tex. 235, 218 S. W. 1030; S. A. Public Service Co. v. Alexander (Tex. Com. App.) 280 S. W. 753; Railway v. Finger (Tex. Civ. App.) 16 S.W.(2d) 132; Union Stock Yards v. Peeler (Tex. Civ. App.) 21 S.W.(2d) 1076; McCoy v. Beach-Wittman Co. (Tex. Civ. App.) 22 S.W.(2d) 714; Trochta v. Railway (Tex. Com. App.) 218 S. W. 1038; Kirksey v. Traction Co., 110 Tex. 190, 217 S. W. 139; Railway v. Price (Tex. Civ. App.) 222 S. W. 628; Dallas Railway Co. v. Warlick (Tex. Com. App.) 285 S. W. 302.

That such an issue was raised here seems plain. This was not an instance of where either the instrumentality or general cause of death was unknown or even uncertain, since the undisputed proof showed the deceased to have been killed by the passenger train he had within an hour before bought a ticket to go to Dallas on, the time, place, and approximately immediate surroundings of the occurrence being likewise established, only the particular manner in which it came about being in doubt or subject to inquiry; as affects that, in addition to what has been recited as being undisputed, there were several other contributing conditions testified to, which, concurring with it, clearly were sufficient to take to the jury the inquiry as to whether or not such causative negligence on appellant's part was a reasonable inference, among them:

(1) That, within an hour before the train that so killed him arrived at Navasota, Mr. Ewing bought a ticket for it from appellant's agent from there to Dallas, having had previous information that he would have to secure sleeping car accommodations on the train; the train upon arrival at Navasota about 1 o'clock that night, however, having been stopped down in the yards so that, in order to board it, he had to go to a point beyond and south of the platform provided for that purpose.

(2) That there were several obstacles south of the platform and near where his body was found, which reasonably might have in some manner caused Mr. Ewing to stumble or fall underneath the train at that place, among them, somewhat abrupt depressions between the rails of the Santa Fé track, loose gravel just south of that on the way usually traveled by passengers for that train in going from the depot to its sleeping coaches, as well as both a block signal and water tower, or crane, the concrete bases of which stuck up above the ground.

(3) That all the sleeping cars of that train had stopped south of the Santa Fé crossing; that Mr. Ewing, after having so bought his ticket, was last seen alive in appellant's station after this train that killed him had arrived; and that, only a few moments before his death, appellant's tower keeper, from underneath the train on its east side, saw the legs of a man, whose pants were the same color as Mr. Ewing's, walking south on the other side from about opposite the tower.

(4) That Mr. Ewing was the only passenger at Navasota for that train that night; that the area where he was killed was well lighted; and that, after so stopping the sleeping cars below the Santa Fé crossing, the train was started again within about four minutes without the operatives having taken proper precautions to see to it that he was safely on board thereof.

Indeed, in answering the special issues submitted, the verdict found, apparently at least, that there was negligence in each of these specified particulars that proximately caused the tragedy; for the purposes of the question in hand, no inquiry concerning the sufficiency of the evidence to support such findings is either raised or material.

There was no evidence of suicide; hence the strong presumption of law that it was not committed obtains, to say nothing of the jury's further finding to that effect.

Wherefore the request for peremptory instruction was properly overruled.

But these, if not others of the objections, we conclude, do involve prejudicial error:

(1) This instruction of the court to the jury: "Railroads are...