Texas N. O. R. Co. v. Zarate , 74 S.W.2d 721 ( 1934 )

Under the Watts Case, cited by the majority opinion, the defense against the failure to exercise the duty of keeping a lookout is contributory negligence on the part of the injured party. I think the evidence abundantly supports the jury's finding acquitting the deceased of contributory negligence; that is, at the time of his death the deceased was not drunk, and was not lying down on or near the railroad track at the time of and immediately prior to his death. On the issue of drunkenness, as shown by the majority opinion, after Zarate's death (about two hours) two witnesses examined his body and found no indication that he had been drinking on the day of his death. An autopsy, examination of the stomach, was performed upon his body, and one witness testified that no sign of alcohol was discovered by the autopsy. Appellant made no effort to rebut this testimony. True, appellant's witness testified that about 1 a. m. on the morning Zarate was killed he saw a Mexican named Cruse in charge of a small Mexican who was drunk, and that they left Corrigan, walking down the railroad track towards the section house where Zarate lived. He testified further that the small Mexican was known in Corrigan as "Shorty," and that Cruse appeared to be sober. All the testimony was that no one called Zarate "Shorty," but that another Mexican in Corrigan was called by that name. The testimony was further to the effect that when Cruse reported the death of Zarate he was under the influence of liquor. If it be conceded that the "Shorty" whom the witness saw with Cruse was in fact Zarate, a concession contrary to all the evidence, the circumstances raised the issue that it was Cruse and not Zarate who was drunk at 1 a. m.

In support of the jury's finding that Zarate was not lying down on or near the railroad track, the following circumstances were in evidence: The witness Yancy Cockrell testified that not more than fifteen minutes before Zarate was killed, he saw the two Mexicans standing near the railroad track at the place where Zarate was killed. One of them was a large man and one was a small man. One of them spoke to him and came up to the railroad track and sat down on the cross-ties sear the witness. I do not agree with my Brethren that this witness said with certainty that it was the small man who sat down on the cross-ties. In his direct testimony he made that statement, but on cross-examination said that he could not say whether it was the small man or the large man who approached him. I give his testimony this construction because he identified the man who spoke to him by the color of his shirt, and it was shown that Zarate did not have on the kind of shirt worn by the man who approached the witness and sat down on the ties. As Zarate was sober, on the verdict of the jury, it would not be a reasonable inference to say that he had taken care of his drunken friend Cruse from 1 a. m. until 3:30 a. m., at which time he was standing up, walking around, and then within fifteen minutes abandoned his charge and lay down and went to sleep on or near the railroad track — which is the inference appellant draws as a matter of law from the testimony in order to convict Zarate of contributory negligence. The circumstances clearly support the inference that it was Cruse who was drunk, who approached the railroad track and sat down on the cross-ties, who smoked the cigarettes, and who vomited near the place where the cigarette stubs were found.

The evidence also satisfactorily supports the finding of the jury that Zarate was not sitting down on or near the railroad track The testimony of appellant's engineer and fireman supports this conclusion. They said that they kept a lookout at the time and place on the occasion of Zarate's death. They further said that had he been sitting on or near the railroad track they would have seen him, but would not have seen him had he been lying down near the railroad track, but would have seen him had he been sitting on the railroad track.

These were the only issues of contributory negligence submitted to the jury. If other issues of contributory negligence were raised by the evidence, appellant abandoned them by not asking for their submission.

If the deceased was not lying down or sitting down on or near the railroad track, inquiry arises: Where was he? Under the verdict of the jury, which in my judgment is well supported, either Zarate was standing on or near the railroad track as the train approached, or he was so far away from the track that the engineer and fireman could not see him, and then deliberately walked into the train.

The evidence satisfactorily rebuts the inference that Zarate was standing so far away from the track as not to be in the view of the engineer and fireman. Standing away from the track, why should he, a sober man, walk deliberately into the train after the engine had passed? Had he been drunk enough such an inference would be reasonable, but he was not drunk. Such an inference would convict Zarate of suicide; the inference is that he did not commit suicide. The burden rested upon appellant to establish that issue by a preponderance of the testimony. The wounds on the body of the deceased could have been inflicted either by the engine or by the coaches. The coaches were in appellant's possession and, though having an opportunity after the accident, it made no examination of them.

In my judgment the circumstances more satisfactorily support the conclusion that Zarate was struck by the engine while standing on or near the railroad track. Tracks were found on the railroad track near where he was killed, indicating that some one in haste tried to get off the track. There was no other explanation of these tracks.

The evidence supports the verdict that appellant's agents did not keep a proper lookout at the time Zarate was killed. On the trial, the engineer and fireman testified on this issue that they kept a most careful lookout; that, though nearly two years had elapsed, they had an independent recollection of keeping a lookout at the very place and time Zarate was found dead. The jury was authorized to conclude that this testimony was "a little too strong." As shown by the majority opinion, one of appellee's witnesses testified that he saw appellant's train pass his filling station on this particular occasion; that the whistle was not blown nor the bell rung for the crossing near where Zarate was killed; and that he saw no one in the engine cab, and could have seen them had they been sitting where it was necessary for them to sit to keep a lookout. These are not the very words of the witness, but clearly the effect of his testimony. If he was standing on or near the track — and the evidence supports that conclusion — and had the engineer and fireman kept a lookout, they would have seen him. The fact that they did not see him supports the finding that they did not keep a lookout. The holding in Texas N. O. R. Co. v. Spencer (Tex.Civ.App.)244 S.W. 1089, 1093, supports the conclusion. In that case it was said: "The track was straight for about 1,200 yards west of the place of the accident. There was nothing to obstruct the view of the operatives of one on the track, whether he was standing up or lying down. The evidence showed that had Vestal been lying down the operatives could have seen him, in the exercise of ordinary care, in time to have stopped the train, and thus avoided injuring him. These facts warrant the inference that the operatives failed to keep a proper lookout."

On this construction of the testimony the jury was justified in finding the issue of proximate cause in favor of appellee; for, as the deceased was standing on or near the railroad track, he was in the view of the engineer and fireman for more than fifteen hundred feet as the train approached, and the train could have been stopped, under the evidence of one expert witness, within three hundred feet.

The theory of the majority opinion is that it is just as reasonable to conclude that Zarate was killed under circumstances where a lookout would not have protected him as that a lookout would have protected him. The McHowell and other cases cited and reviewed by my Brethren are in point only if they have correctly construed the testimony. But if I have correctly construed the testimony, the issue of proximate cause was clearly raised.

St. Louis S.W. Railway Co. v. Douthit (Tex.Civ.App.) 208 S.W. 201, is interestingly in point in support of the jury's verdict on the facts of this case. In this case the jury found the very facts in favor of appellee which make the Douthit Case in point. In attempting to distinguish the Douthit Case, the majority opinion assumes that the jury findings were without support.

I would add that the damage assessed at only $2,500 clearly indicated that the jury weighed with the greatest care all the testimony in the record.

It is my conclusion that the judgment of the lower court should be affirmed.