Washington v. Missouri, K. & T. Ry. Co. of Texas

• Decision Date: 28 May 1896
• Citation: 36 S.W. 778
• Parties: WASHINGTON v. MISSOURI, K. & T. RY. CO. OF TEXAS.
• Court: Texas Court of Appeals

36 S.W. 778

WASHINGTON v. MISSOURI, K. & T. RY. CO. OF TEXAS.

Court of Civil Appeals of Texas.

May 28, 1896.

Appeal from district court, Harris county; S. H. Brashear, Judge.

Action by Lizzie Washington against the Missouri, Kansas & Texas Railway Company of Texas to recover damages for the alleged wrongful killing of her husband. A verdict for defendant was directed, and plaintiff appeals. Affirmed.

O. T. Holt and J. D. Wolverton, for appellant. Baker, Botts, Baker & Lovett, for appellee.

WILLIAMS, J.

This suit was instituted by appellant against appellee for the recovery of damages for the alleged wrongful killing of her husband, one Mose Washington, by appellee, through the negligence of its employés in the operation of a train of cars upon appellee's track in the city of Houston. Upon trial of the case, after hearing the evidence, the court instructed the jury to find for the defendant, which was done; and, upon the verdict, the court rendered judgment denying the right of plaintiff to recover against defendant, and, a new trial being overruled, plaintiff appealed to this court.

The question presented for our decision is: Did the court err in taking the case from the consideration of the jury, and adjudging the defendant not liable in damages to plaintiff? The solution of this question depends upon the answer to this further question: Would the law sanction a verdict had the jury rendered one for plaintiff, upon the evidence submitted to them? If not, then it was the duty of the court to instruct a verdict for defendant; and not, as seems to be the contention of the appellant, to permit the jury to return a verdict, and if, in the judgment of the court, the verdict was not warranted by the evidence, to set it aside, and grant a new trial. We take it that it is now settled by the weight of authority that, when the evidence is not sufficient in law to authorize a finding for the plaintiff by the jury, the court is not required to go further with the trial, but the jury should be peremptorily instructed to find for the defendant. Railway Co. v. Faber, 77 Tex. 153, 8 S. W. 64; Pleasants v. Fant, 22 Wall. 120. The doctrine as announced in the cases here cited, and in many others which might be cited, is now generally recognized and enforced by the courts, both of England and America, in the trial of jury cases; and the rule which was formerly observed in some courts, which required a submission of the cause to the jury if there were but a scintilla of evidence to support an issue of fact, is now generally repudiated.

The facts of this case, as we deduce them from the evidence, are substantially these: The deceased, Mose Washington, who was the husband of the plaintiff, left his home in the latter part of the afternoon of December 31, 1894, telling his wife he was going on a hunt, and when she next saw him, about 9 o'clock on the next day, he was dead. She did not know of his ever returning to their house after he left on the afternoon of the previous day, nor did she know anything of his movements or his whereabouts after he left the house. The deceased was seen between 6 and 7 o'clock p. m. on December 31, 1894, walking on the right of way of defendant company, and near to its track in the city of Houston. He was going east at the time he was seen on the right of way, and on this part of the right of way there is a footpath running by the side of the track of the railway, from the termination of Holly street to a bridge on said track, over a deep ravine. This bridge was built by defendant some two years before the trial, and it is so constructed as to admit of an easy passage by footmen; and both...