Wichita Falls, R. & Ft. W. Ry. Co. v. Emberlin

• Decision Date: 25 April 1925
• Docket Number: (No. 10322.)
• Citation: 274 S.W. 991
• Parties: WICHITA FALLS. R. & FT. W. RY. CO. et al. v. EMBERLIN.
• Court: Texas Court of Appeals

274 S.W. 991

WICHITA FALLS. R. & FT. W. RY. CO. et al. v. EMBERLIN.

(No. 10322.)

Court of Civil Appeals of Texas. Fort Worth.

April 25, 1925.

Rehearing Denied June 27, 1925.

Appeal from District Court, Stephens County; W. R. Ely, Judge.

Action by Mrs. Mattie Emberlin against the Witchita Falls, Ranger & Fort Worth Railway Company and others. From a judgment for plaintiff, the named defendant and another appeal. Reversed, and remanded for new trial as between plaintiff and appellants.

See, also, 255 S. W. 796; 267 S. W. 463.

Thompson, Barwise, Wharton & Hiner, of Fort Worth, John F. Evans, of Breckenridge, Levy & Evans and Goree, Odell & Allen, all of Fort Worth, and McCartney, Foster & McGee, of Breckenridge, for appellants.

W. A. Shields, of Houston, W. C. Jackson, of Guion, and Merritt & Leddy, of Dallas, for appellee.

DUNKLIN, J.

At a former term of this court, in considering the appeal in this case, two assignments of error were sustained, and the judgment of the trial court was reversed, and the cause remanded, as shown in 255 S. W. 796. A writ of error was granted by the Supreme Court, which reversed our decision, and the cause was remanded to this court for a disposition of the assignments of error which we had not determined, as shown in volume 267 S. W. 463.

For a statement of the facts of the case, the issues of negligence involved, and the judgment rendered in the trial court, from which the appeal was prosecuted, reference is now made to our former opinion.

We shall now determine other questions presented by appellants that were not discussed in our former opinion.

As said in our former opinion, the evidence showed that the conductor of the train did not see Emberlin before he was struck and killed, nor was there any proof that the fireman, who did not testify upon the trial, saw deceased before he was killed. The only effort made by plaintiff to sustain her allegation of negligence after discovered peril was the introduction of the testimony tending to show that the peril of deceased was discovered by the engineer in time to have avoided killing him.

Issue No. 7, submitted by the court, was as follows:

"Did the operatives of the locomotive or either of them, at the time in question, see the deceased, and know of his peril in time that they could, by the use of the means at hand, and with safety to the locomotive and train, have stopped the same in time to have avoided killing the deceased? Answer `yes' or `no.'"

Objection was urged by appellant at the time of submission of the issue that it was erroneous because it was a combination of two issues which should be submitted separately — the two issues being, first, whether or not the operatives of the locomotive or either of them discovered Emberlin's peril before he was struck; and, the second, whether that discovery was made in time to have enabled the operatives to avoid killing him. The only proof offered to show when such discovery was made was the testimony of Vaughn, the engineer himself, and that testimony was uncontroverted. That left as the only controverted issue of fact the one whether the discovery so made was in time to have avoided killing Emberlin. Under such circumstances the assignment based on the objection above noted to issue No. 7 is overruled.

We overrule the further assignment of error to the submission of that issue on the ground that it embraced the question as to whether or not some operative of the locomotive other than the engineer discovered Emberlin's peril in time to have avoided killing him, since that objection was not urged to the issue before or at the time it was submitted to the jury, and it was therefore waived. V. S. Tex. Civ. Statutes, art. 1971.

Our conclusion on the former hearing, that the evidence showed conclusively as a question of law that Emberlin was guilty of negligence proximately contributing to his death, included the further minor conclusion then reached that such negligence was established by such an overwhelming weight of the testimony as to require this court to set aside the finding of the jury on that issue, and we now affirm that conclusion. Barron v. H. E. & W. T. Ry. Co. (Tex. Com. App.) 249 S. W. 825; Lilienthal v. Motor Car Indemnity Exchange (Tex. Com. App.) 239 S. W. 906; Turley v. Campbell (Tex. Com. App.) 241 S. W. 682; Brown v. City Service Co. (Tex. Com. App.) 245 S. W. 656; Tweed v. W. U. Tel. Co., 107 Tex. 247, 166 S. W. 696, 177 S. W. 957; Marshburn v. Stewart (Tex. Sup.) 260 S. W. 565.

But we are unable to sustain appellants' contention that the proof offered by appellee to support her allegation of negligence of the engineer after he discovered Emberlin's peril, and that such negligence was the proximate cause of his death, was so meager as to require this court to set aside the finding of the jury on that issue. However, we believe that the weight of such evidence may properly be considered in determining whether or not improper argument made to the jury by plaintiff's counsel, and his effort to present inadmissible testimony, operated to appellants' prejudice, as contended by appellants in assignments of error, hereinafter discussed, and in view of the rule announced in authorities cited in our former opinion, that the burden was upon plaintiff to prove actual knowledge of the engineer of Emberlin's peril in time to have avoided killing him.

Another assignment of error, which was made one of the grounds in defendants' motions for new trial, reads as follows:

"That the court erred in rendering judgment on the findings of the jury herein on their verdict of $20,000 damages in this cause, and in failing to set aside such finding for the reason, under the undisputed evidence in this case, said amount was so exorbitant and excessive that it shows upon its face that the jury in rendering such verdict was influenced by improper motives, and was biased and prejudiced against this defendant, in that the evidence of disinterested witnesses in this case shows that the deceased had never during his lifetime earned any more than a bare living, and that during his past life had accumulated nothing, and further shows that the wages that the said deceased was earning at the time of his death and immediately prior thereto was due to the fact that the times were extraordinary, being times of oil development and oil boom and unstable times, and the evidence shows herein, and in view of such disinterested evidence, and the further fact that there is no evidence in this record showing or tending to show the age of the plaintiff herein or her condition of health, or her probable life expectancy, the verdict of the jury and the judgment of the court based thereon is excessive, exorbitant, and wholly out of proportion and the court erred in rendering judgment on such verdict."

Prior to the filing of appellants' motions for new trial, the court had already overruled their motions to set aside the verdict of the jury for several alleged errors, one of which was that the finding of damages in plaintiff's favor for $20,000 was excessive.

Unless the verdict had been set aside, the court had no other alternative than to enter a judgment in accordance therewith. Ablowich v. Greenville Nat. Bank, 95 Tex. 429, 67 S. W. 79, 881; Waller v. Lilse, 96 Tex. 21, 70 S. W. 17. But we are of the opinion that the assignment copied above, when considered in the light of the prior motion to set aside the verdict, is sufficient to direct the attention of the trial court and this court to the error complained of. Article 1612, V. S. Tex. Civ. Statutes; Morrison v. Neely, 231 S. W. 728, by the Commission of Appeals, and adopted by the Supreme Court; Harlington Land & Water Co. v. Houston Motor Car Co. (Tex. Com. App.) 209 S. W. 146; Rone v. Marti (Tex. Civ. App.) 244 S. W. 640; Barkley v. Gibbs (Tex. Com. App.) 227 S. W. 1099; Southern Traction Co. v. Wilson, (Tex. Com. App.) 254 S. W. 1104.

The following proceedings were shown by a bill of exception appearing in the record:

"Mr. W. A. Shields, one of the plaintiff's attorneys, in his argument of his case to the jury, made the following argument: `You take all of that stuff and throw it to the winds, you can do it in your manhood, and let the sunshine of God in your hearts, and you will lay your hand upon your heart and will say in the strength of my manhood, I am going to do what is right in this case, regardless of argument, and am going to give this good woman what is coming to her in this case. Sometimes a jury will say, we will let them down with a little verdict and it will be settled. Don't be misled, if you come in here with a verdict like Bill Evans wants you to give, for $6,000, it will not be settled, for the case will be appealed just the same; you give this woman enough to compensate her for her injuries and damages she has sustained.'

"Immediately after that argument was made, defendants' counsel objected to it on the ground that it was highly improper and calculated to inflame the minds of the jurors and prejudice them against the defendants, and especially objected to that portion of the argument in which the statement was made that the defendants would appeal the case if a verdict was rendered against them. The court approved the bill with the following explanation: `At the time plaintiff's counsel made the argument, defendant's counsel objected, and the court thereupon stopped the argument of counsel and instructed the jury not to consider the remarks of counsel complained of for any purpose. Defendants at no time presented or requested a written charge to the jury or made any objection to the action of the court in instructing the jury as hereinbefore stated, and made no further objection of any kind to the argument of plaintiff's counsel set out in this bill.'

"Immediately after the foregoing argument was made, Mr. W. A. Shields, counsel for plaintiff, made this further argument: `But I know as well as I know anything...