Texas & P. Ry. Co. v. Guidry

• Decision Date: 12 July 1928
• Docket Number: (No. 3566.)
• Citation: 9 S.W.2d 284
• Parties: TEXAS & P. RY. CO. v. GUIDRY.
• Court: Texas Court of Appeals

9 S.W.2d 284

TEXAS & P. RY. CO. v. GUIDRY.

(No. 3566.)

Court of Civil Appeals of Texas. Texarkana.

July 12, 1928.

Rehearing Denied August 2, 1928.

Appeal from District Court, Marion County; R. T. Wilkinson, Judge.

Action by Mrs. Wallace Guidry, as administratrix of the estate of Wallace Guidry, deceased, against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Appellant was a common carrier by railroad, and as such engaged in interstate commerce. Wallace Guidry was employed by it as a brakeman in such commerce. December 7, 1926, Guidry was instantly killed as the result of a collision in appellant's yards at Melville, La., between a gondola car on which he was riding in discharge of his duty and another car standing on a track parallel with and near the one on which the gondola car was moving. At the time of the accident the gondola car was being pushed north by an engine pulling two box cars and moving at a speed of about 12 miles an hour, when it (the gondola car) collided with a cow on the track and was thereby derailed. Guidry was then on the north end of the gondola car, which, moving to the right off the track it was on, collided with the car on the other track in such a way as to crush and kill him. This suit for damages for his death was commenced and prosecuted by appellee, his widow, as administratrix of his estate, on the theory that his death was due to actionable negligence on the part of appellant. At the trial the court submitted to the jury, and they answered as indicated, questions as follows:

(1) "Could those operating the engine by the use of ordinary care have stopped the derailed car in time to have avoided injuring the deceased?" Answer: "Yes."

(2) "Was such failure, if any, the proximate cause of the deceased being injured?" Answer: "Yes."

(3) "Did the deceased signal those operating the engine to stop or check the speed of the train before or at the time the car struck the cow." Answer: "Yes."

(4) "Did the deceased keep a lookout to discover the animal before or at the time the car struck him?" Answer: "Yes."

(5) "What amount of damages do you find the surviving wife and minor children of Wallace Guidry, deceased, have sustained by reason of his death?" Answer: "$30,000."

(6) "Do you find that the derailment of the car placed the deceased in a position of peril?" Answer: "Yes."

(7) "Did those operating the engine know of the perilous situation of the deceased in time, by the exercise of ordinary care in the use of all the means at hand consistent with the safety of the engine and cars and those on them, to have avoided the injury to the deceased?" Answer: "Yes."

The appeal is from a judgment in appellee's favor for the amount found by the jury.

Bibb & Caven, of Marshall, for appellant.

Jones & Jones, of Marshall, and P. G. Henderson, of Jefferson, for appellee.

WILLSON, C. J. (after stating the facts as above).

It appearing the deceased would not have been injured if the car on which he was riding had not left the track it was on, and it appearing the car would not have left the track, but for the presence of the cow thereon, appellant insists the presence of the cow on the track and consequent derailment of the car was the proximate cause of the injury to the deceased, and therefore that the court below erred when he refused its request that he instruct the jury to return a verdict in its favor. The contention seems to have support in statements of the court in Union Pacific Ry. Co. v. Callaghan (C. C. A.) 56 F. 988, cited by appellant, but it is opposed by authorities which we think better state the law applicable to the facts of this case. "No exact rule for determining when causes are proximate and when remote has yet been formulated" (22 R. C. L. 119), and when such a rule is formulated, said the United States Supreme Court in Insurance Co. v. Tweed, 7 Wall. 52, 19 L. Ed. 65, it will "remain, after all, to decide each case largely upon the special facts belonging to it."

Perhaps the most quoted definition of the phrase is the one following:

"The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred." 22 R. C. L. 110.

Another approved definition is as follows:

"The proximate cause of an injury may, in general, be stated to be that act or omission which immediately causes or fails to prevent the injury; an act or omission occurring or concurring with another, which, had it not happened, the injury would not have been inflicted, notwithstanding the latter." Railway Co. v. Kelly, 91 Tenn. 699, 20 S. W. 312, 17 L. R. A. 691, 36 Am. St. Rep. 902; Fairbanks v. Gambill, 142 Tenn. 633, 222 S. W. 5.

When tested by either of the definitions just set out, we think it must be said that the negligence of the engineer (as found by the jury) in failing to stop the train before the gondola car collided with the car on the other track was a proximate cause of Guidry's death; for it is plain, if the engineer had stopped the train before the collision between the cars occurred, Guidry would not have been injured as he was. It may be that the presence of the cow on the track was also a proximate cause, for there may be more than one such cause of an accident (Railway Co. v. Wilkes [Tex. Civ. App.] 159 S. W. 126; Sweet v. Perkins, 196 N. Y. 482, 90 N....