Texas & P. Ry. Co. v. Short

• Decision Date: 19 May 1933
• Docket Number: No. 1115.,1115.
• Citation: 62 S.W.2d 995
• Parties: TEXAS & P. RY. CO. v. SHORT.
• Court: Texas Court of Appeals

Page 995

62 S.W.2d 995

TEXAS & P. RY. CO. v. SHORT.

No. 1115.

Court of Civil Appeals of Texas. Eastland.

May 19, 1933.

Rehearing Denied July 10, 1933.

Appeal from District Court, Howard County; A. S. Mauzey, Judge.

Action by Mrs. Ida Inez Short, executrix, against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Douthit, Mays & Perkins, of Sweetwater, for appellant.

Grisham, Patterson & Grisham, of Eastland, for appellee.

FUNDERBURK, Justice.

This suit was brought subject to the provisions of the Federal Employers' Liability Act (45 USCA §§ 51-59) to recover damages for the death of Ruben A. Short in a railroad wreck at a "turnout" near Eagle Ford, Tex. On the trial the jury to whom special issues in response to the pleadings of the parties were submitted found that the defendant was guilty of negligence which was the proximate cause of the death of said Short in each of the following respects, namely: (1) In failing to require T. B. Petty, the engineer, to qualify according to rules of the company for the trip before he took charge of the engine; (2) in running the train at a speed of 50 miles per hour; (3) in failing to inform said T. B. Petty, the engineer, before putting him in charge of said train of a change made in the tracks near Eagle Ford since said Petty had previously made a trip over the road; (4) in failing to maintain a signboard near the track a sufficient distance west from the curve (where the wreck occurred) to indicate to its engineer the existence of the curve in time to warn him of the danger incident to running the train at a high rate of speed; (5) in furnishing to said engineer on the day of the accident a time-table which incorrectly showed the junction of the two tracks at a different place than where it in fact existed at a point near Eagle Ford; and (6) in the failure of said engineer to have the locomotive under control as it approached the end of the double track (i. e., the turnout).

Upon issues of contributory negligence, the jury found (1) that Short had not failed to exercise ordinary care to discover the turnout in sufficient time to have caused the speed of the locomotive to be reduced to a safe speed; (2) that said Short did not discover said turnout at a sufficient distance therefrom to have warned the engineer in time to have reduced the speed to such a rate as to have safely passed over said junction; (3) that defendant had issued a bulletin, giving the location of said turnout at approximately 500 feet west of its depot at Eagle Ford; that Short did not read said bulletin, but such failure to read same was not one of the proximate causes of said injuries; (4) that Short told the engineer Petty that the end of the double track was just west of Dallas, but, in stating to said engineer that said turnout was just west of Dallas, he had not failed to exercise that degree of care that a reasonably prudent person would have exercised under the same or similar circumstances, and that such statement was not one of the proximate causes of said injuries; (5) that said Short, in making a trip from Fort Worth to Dallas and return on October 9th and 10th (a day or two previous to the accident), had not failed to exercise ordinary care to familiarize himself with the location of said turnout and degree of curvature thereof, and that such failure, if any, was not one of the proximate causes of said injuries; (6) that Short did not know the location of said turnout on the occasion in question, and that a reasonably prudent person under the same or similar circumstances would not have known of such location, and such failure was not one of the proximate causes of said injuries; (7) that Short stated to said engineer that said turnout was just west of Dallas, and that such statement led such engineer to believe that it was just west of Dallas and not just west of Eagle Ford, but that such statement was not the sole proximate cause of said injuries, nor was it one of the proximate causes of said injuries; (8) that defendant issued a bulletin about June 8, 1930, giving the location of said turnout at approximately 500 feet west of defendant's depot at Eagle Ford; that Short did not read said bulletin prior to the wreck, but such failure to read same was not a failure to exercise that degree of care that a reasonably prudent person would have exercised under the same or similar circumstances, and was not one of the proximate causes of said injuries. The total amount of damages found was $23,500. From a judgment for said sum in favor of plaintiff the defendant has appealed. A further statement of essential facts will be made in particular connections if found necessary.

The assignments of error are so numerous that we do not deem it advisable in this opinion to undertake to discuss them by separate mention or reference.

The court did not err, we think, in refusing to instruct a verdict for appellant. Whatever may be said of the sufficiency or insufficiency of the evidence bearing upon the issues of contributory negligence and assumed risk, neither contributory negligence nor assumed risk was, in our opinion, so conclusively shown by the evidence as a matter of law to justify a peremptory instruction.

The failure of Short, a day or so before the wreck, to read the bulletin posted in the depot at Dallas, which contained the information that the position of the turnout was at the place where the wreck subsequently occurred, was certainly not contributory negligence as a matter of law. The theory advanced is that, in failing to read the bulletin, Short violated a rule of the company. When it is claimed that the violation of a rule contributed to an injury, it is not a question of negligence per se, but comes within the general rule that the question is one for the jury to determine whether such act was negligence; that is, whether under all the circumstances a reasonably prudent person would have done as the employee in question did. Galveston, H. & S. A. Ry. Co. v. Adams, 94 Tex. 100, 58 S. W. 831; Dunlap v. Northeastern R. Co., 130 U. S. 649, 9 S. Ct. 647, 32 L. Ed. 1058; Galveston, H. & S. A. Ry. Co. v. Sweeney, 14 Tex. Civ. App. 216, 36 S. W. 800; Bonner & Eddy v. Bean, 80 Tex. 155, 15 S. W. 798.

Even if such failure to read the bulletin was negligence or was sufficient evidence of negligence to require the submission of an issue to the jury, it was not the proximate cause of the injury. Every ground of negligence charged against the appellant and found in favor of the plaintiff by the jury intervened between Short's failure to read the bulletin and the wreck of the train in which he met his death. We think, as a matter of law, we are justified in the view that, in the light of all the facts presented by this record, a reasonably prudent person situated as was this fireman could not, at the time it was claimed he had an opportunity to read the bulletin but failed, have reasonably foreseen any such injury as likely to result from such omission.

The jury found that Short stated to the engineer Petty that the turnout was just west of Dallas, and that such statement led the engineer to believe that it was not just west of Eagle Ford, which the evidence shows to be 4.9 miles west of Union Terminal Depot in Dallas. The jury further found that, in making such statement, Short had not failed to exercise that degree of care that a reasonably prudent person would have exercised under the same or similar circumstances, and that it was neither the sole proximate cause nor one of the proximate causes of the injury. Appellant argues that such statement and the effect thereof as found by the jury was, as a matter of law, an intervening efficient cause of the accident, and hence the court erred in rendering judgment on the verdict in favor of appellee. The jury found that Short did not know the location of the turnout. We do not believe the evidence justifies the conclusion that he was under any duty to know its exact position. In a very reasonable sense it was true that Eagle Ford is just west of Dallas. We are not prepared to hold that the mere inquiry made by the engineer of Short as to the location of the turnout and the answer given thereto show contributory negligence as a matter of law. As an issue of fact it was submitted to the jury and found in favor of appellee. If the transaction involved no negligence on the part of Short, then clearly we think it was not such an intervening efficient cause of the accident as a matter of law to render the negligence of the appellant too remote to subject it to legal liability.

We are inclined to think the evidence was sufficient to raise an issue of fact as to whether Short assumed the risk of defendant's negligence in failing to require the engineer Petty to qualify for the trip under the rule of the company prescribing as a qualification that he have made at least one round trip over the road within the preceding year. Petty, the engineer, testified that he so informed Short of his lack of qualification before beginning the trip in question from Fort Worth to Dallas. We have not deemed it necessary to go fully into this question because, if it should be granted that the court erred in not submitting this issue, it would not affect the disposition of the case, since we have concluded that, as to at least one of the other grounds of negligence, if not more, there was no evidence raising any issue of assumed risk. As to the ground of negligence consisting of the failure to have a warning sign a sufficient distance from the turnout to notify engineers in time to properly slow down their trains, we do not believe there can be said to have been any evidence to charge Short with either assumed risk or contributory negligence. He did not know the location of the turnout (so the jury found). There was no evidence that he knew it. It cannot be said, we think, that any of his duties as a fireman...