International-Great N. R. Co. v. Acker , 128 S.W.2d 506 ( 1939 )

The opinion in this case was the product of this court's labors upon a record consisting of 495 pages of transcript and 815 pages of statement of facts. More extraordinary, the opinion represented the court's conclusions of fact and law made in response to 539 assignments of error! it would be remarkable, indeed, if any court under such circumstances should escape the hazard of failing to appreciate one or more meritorious grounds for the reversal of the judgment. The writer cannot escape the conviction that a few errors committed under such circumstances might not inappropriately be considered as invited errors.

Appellants' motion for rehearing placing, as it does, emphasis where emphasis is due, makes clear to the mind of the writer that our opinion does violence to the principle that a plaintiff's allegations of the essential facts constituting his cause of action, or matters necessary to the maintenance thereof, may not, except in the alternative, or by separate counts, be joined with the averment of contradictory and inconsistent facts without having the effect of the mutual destruction of both.

In English v. Terry, Tex. Civ. App. 85 S.W.2d 1063, 1066, we took occasion to say: "We have noted seemingly a growing tendency in negligence cases for the plaintiff to specify so many and detailed separate and independent grounds of negligence, * * * that quite often it appears in the very face of the pleadings that if a particular act or omission is a proximate cause of the injury, another act or omission also alleged to be a proximate cause could not be. In such cases the allegations nullify each other, just as certainly as the findings of the jury in this case, as above discussed, have nullified each other." Further, upon the same point it was said that `in this case it was alleged that the defendants were negligent in that the brakes on the motortruck were defective and out of repair, in that they were insufficient and inadequate to control the movements of said truck, and that same was a proximate cause of the injuries. It is quite plain that if that ground of negligence was a proximate cause of the injuries, then there was no independent ground of negligence, as was also alleged in driving the truck on the left-hand side of the road. An act or omission impossible to be avoided could not be, in itself, negligence proximately causing an injury. Manifestly, there could be no duty to avoid the impossible."

Recognition and application of this principle was the basis of this court's action in holding the petition in Dallas Ry. T. Co. v. Redman, Tex. Civ. App. 88 S.W.2d 136, subject to general demurrer. We can perceive of no theory upon which the Supreme Court, in passing upon the application for writ of error in that case, could have approved the judgment, and yet have disapproved our holding upon that point. Most everything said in that opinion is equally applicable to the instant case.

In plaintiffs' petition each and every one of the acts or omissions alleged to be negligence and a proximate cause of the death of J. C. Gourley was rendered immaterial to plaintiffs' right of recovery by further allegations as follows: "* * * the engineer did actually discover said automobile and the persons riding therein before they went upon said track and realized that they were approaching said track and were about to go upon and attempt to cross same and their perilous position on account thereof in time so that by the exercise of ordinary care to use all the means at his command and consistent with the safety of his train its crew and passengers, he could have, by reducing the speed of the train, or sounding the whistle or ringing the bell, or by all of said means, as soon as he did discover the presence and peril of such persons; avoided or lessened the injuries to them, or, by ringing the bell or sounding his whistle, or by doing both, caused them to stop before they went upon the track, or thereby have given the occupants of said automobile warning of the danger and more time to remove themselves from danger; but he negligently failed to ring the bell and sound said whistle and give warning as he could or should have done, and to lessen or attempt to lessen the speed of said train, each and all of which was negligence, and such negligence was a proximate cause of the injuries toand death of said J. C. Gourley." (Italics ours.)

If, as thus alleged, the breach of duty to exercise ordinary care by reducing the speed of the train or ringing the bell or sounding the whistle, or by all together, arising from the actual discovery of the alleged peril, was negligence, which proximately caused the collision and consequent injury, then as between such negligence on the one hand and all previously alleged grounds of negligence on the other, the former might just as well have been denominated the sole proximate cause. Any concurrence of that cause with any other alleged negligence as causes is necessarily excluded. What did it matter that the crossing was rough, or that the train was running 55 or 60 miles an hour, or that there was a failure to ring the bell or sound the whistle, or that, as alleged, if the bell was rung or whistle sounded, the occupants of the car by reason of defects in the bell and whistle could not have heard same; or that, by reason of a dump and/or defects in the construction of the cab windows, the engineer could not have seen the automobile sooner than he did see it? All these things, if negligence as to others, could hardly be said to be negligence as to the occupants of the automobile in question, since regardless of same, the simple observance of defendant's duty arising upon the actual discovery of the position of the automobile was sufficient for the protection of such occupants from injury. But even if the prior acts or omissions be regarded as negligence, their causal connection with the collision was broken by the fortuitous discovery by defendant's engineer of the automobile "in time", by the exercise of ordinary care to prevent the collision. For the prior negligence to continue to operate as a cause of the collision it would be necessary that same have influenced the ability or will of the engineer to protect the occupants of the car, which, according to the above quoted allegations, was not the case. All prior acts of negligence were as proximate causes of the collision excluded just as effectively by the alleged timely discovery of the automobile as the alleged negligence in failure to maintain a flagman or trainman at the crossing was in Harris v. T. P. R. Co., Tex. Civ. App. 28 S.W.2d 1093, held by this court — speaking through Judge Hickman — to have been excluded by the actual knowledge of deceased of the presence of the train.

The question is, however, whether, granted that the plea of discovered peril excluded all other grounds of negligence as proximate causes of the injury, may the judgment be supported alone upon the issues of discovered peril? Generally, there is no necessary conflict between allegations comprising a plea of discovered peril and allegations of primary negligence as proximate causes of the injury. It all depends upon the nature of the allegations. When the allegations of discovered peril are not, as they may be, alleged in the alternative, they may be sufficient to show a right of recovery if not contradicted by other alleged facts.

It was alleged, among other things, that a proximate cause of the collision was the maintenance of a schedule of 55 or 60 miles per hour "because said train would be running at said rate of speed when said crossing, or any object thereon first came within the field of vision of the operators of the locomotive pulling said train, at which rate of speed it was impossiblefor the train after the crossing came within the field of vision of theoperators of said train to be stopped before going upon said crossing." (Italics ours) This was alleged to be negligence and a proximate cause of the injury. If true, then manifestly the other allegations were not true to the effect that the engineer discovered the automobile in time to prevent the injury. No evidence could be offered to support either of these allegations without contradicting the other.

Another of the alleged proximate causes of the injury was the failure of the defendant to keep a lookout "to discover the person or persons about to use the crossing and the presence of the automobile in which J. C. Gourley and his wife were traveling near or on the track at such crossing but this they negligently failed to do by reason of which theyfailed to discover the presence of the automobile in which J. C. Gourley and his wife were traveling as soon as they could or should have; that if they had kept a proper lookout they would have discovered the automobile and the presence of J. C. Gourley and his wife on or near thetrack and his dangerous position and situation in time to have avoided or lessened the injuries to him and his death, and their failure to keep such lookout was negligence and was a direct proximate cause of the death of J. C. Gourley." (Italics ours) It should require no argument to demonstrate the proposition that if failure for any reason to discover the automobile in time to prevent the injury was a cause of the injury, then allegations to that effect that the automobile was discovered in time to prevent the injury could not be a proximate cause of the injury, and vice versa.

The reasons why such pleadings cannot be held sufficient to support judgments are fully set out in the Redman case, supra, and it will serve no useful purpose to repeat the same here.

In determining the question of the existence of evidence to support essential issues, we must begin by taking as true against the plaintiff all the allegations of the petition not alleged in separate counts or in the alternative. As we also had occasion to say in National Hotel Co. v. Motley, Tex. Civ. App. 123 S.W.2d 461, 462 (point 15 of the syllabus), "In considering what is claimed to constitute evidence of negligence and proximate cause, allegations of plaintiff's petition may be considered, since no evidence could be available to support such issues which was contrary to facts as alleged in pleadings."

Under this rule, considering only evidence not contradicted by any of the inconsistent allegations of the plaintiffs' petition, the evidence, in the opinion of the writer, simply does not support essential issues to a recovery by the plaintiffs, all resulting, of course, from the contradictory allegations.

This naturally leads to the conclusion that the judgment should be reversed and the cause remanded.