Texas & P. Ry. Co. v. Bigham

• Decision Date: 27 June 1896
• Citation: 36 S.W. 1111
• Parties: TEXAS & P. RY. CO. v. BIGHAM.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

36 S.W. 1111

TEXAS & P. RY. CO. v. BIGHAM.¹

Court of Civil Appeals of Texas.

June 27, 1896.

Appeal from district court, Taylor county; T. H. Conner, Judge.

Action by W. R. Bigham against the Texas & Pacific Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

B. G. Bidwell, for appellant. J. H. Beall, for appellee.

Conclusions of Fact.

TARLTON, C. J.

On November 25, 1892, the appellee, in accordance with a prearrangement made with the agent of the appellant, a common carrier, for the shipment of his cattle from Merkel to Waxahachie, Tex., had penned the cattle (about 100 head) in the stock pens of the appellant provided by it for that purpose. The gate which admitted entrance into the pen was out of repair, and had been for some months, as the appellant knew. The appliances for fastening it were defective. Its condition was due to the negligence of the defendant company. In order to prevent the escape of the cattle intended for shipment, the appellee was in the act of fastening it by means of a rope which he had secured for that purpose, when the noise of a passing freight train so frightened the cattle as to reduce them to a condition of panic. They plunged towards the gate and upon it, the one upon the top of the other; and, before the appellee could escape, they hurled him some 20 feet upon the ground, where he fell unconscious from the violence of the contact. The plaintiff hence sustained serious bodily and internal injuries, to such an extent, in fact, that damages for these injuries were awarded him in the sum of $1,800, not complained of as excessive. He also suffered loss in injuries inflicted upon the cattle in their fright, falling the one upon the other, to the extent of $70, also awarded him, and not complained of as excessive. But for the defective condition of the gate, the cattle would not have escaped.

Opinion.

The question first presented arises upon the action of the court in overruling a special exception to the plaintiff's petition. It is therein urged that the petition, which alleges the cause of the injury as hereinabove stated, fails to disclose a cause of action, in that the negligence of the defendant in permitting the gate to remain out of repair was the remote, and not the proximate, cause of the injuries sustained. There is some plausibility in this contention, due to the difficulty and confusion arising upon accurately defining the distinction between what constitutes a proximate, and what a remote, cause. We have concluded, however, that the action of the court was correct. In the case of Gonzales v. City of Galveston, 84 Tex. 3, 19 S. W. 284, cited by the appellee, the city had negligently permitted a pile of lumber to be placed and to remain upon one of its streets. The vehicle of a passing drayman came in contact with the pile of lumber. The plaintiff, a child, was on the side of the lumber opposite to the drayman, and unseen by him. As a consequence of the contact between the dray and the lumber, heavy pieces of the lumber were thrown upon the child, severely injuring her. Our supreme court, through Judge Collard, discussing the question of proximate cause, uses this language: "It is true, if the drayman had not run his load against the lumber the accident would not have occurred; and, on the other hand, if the lumber had not been in the street it would not have occurred. Dispense with either of these facts, and there would have been no injury. The liability cannot be tested in this manner, nor by comparing the negligence of the two, if both were guilty of negligence. If the presence of the lumber pile in the street was at the time chargeable to the negligence of the city, and such negligence, together with the act of the drayman, caused the injury, it would be in part the proximate cause. This view is in accord with the decisions of our supreme court." After quoting from the opinion of Justice Henry in Railway Co. v. Clark, 81 Tex. 48, 16 S. W. 631, in support of his statement of the law, the learned judge proceeds as follows: "By `proximate cause' we do not mean the last act of cause, or nearest act to the injury, but such act, wanting in ordinary care, as actively aided in producing the injury, as a direct and existing cause. It need not be the sole cause, but it must be a concurring cause, such as might reasonably have been contemplated as involving the result, under the attending circumstances;"...