Texas N. O. Ry. Co. v. Wagner , 262 S.W. 902 ( 1923 )

The appellees' motion for rehearing is to me so convincing of the correctness of the original dissent that another must be entered on the order overruling it. As the minority view was before very fully stated, perhaps more so than necessary, only brief comment will here be added, merely to help further clarify the lines of difference that have developed.

It was never my idea that, as concerns the issue of discovered peril, more than one element of recoverable negligence, that of the fireman, was involved: on the contrary, the court's charge on the subject so limiting that phase of the cause of action was formerly quoted in full. But I cannot agree that on that account all consideration of the engineer's status must needs be immaterial. It seems to me self-evident from the form of this issue, as so framed by the trial court, that the situation of the engineer in the circumstances was necessarily involved as incidental to and in part determinative of the ultimate question of whether or not the fireman was, under that doctrine, negligent; in other words, the relation of the engineer to the emergency and whether or not he could, "in the exercise of ordinary care" upon his part, when notified by the fireman, have either stopped or so checked or given warning of the approach of the train as to have prevented the accident, was expressly made by the court an ingredient of the sole inquiry submitted to the jury, the gist of which simply was: Did the fireman discover Wagner's peril in time, by the exercise of ordinary care by each trainman in his turn for the injury to have been avoided? This may not have been the clearest way to submit the question — indeed, under the evidence, we all now seem agreed that the quality of the engineer's acts might also have been independently asked about — but since it was done that way the fireman's default could not have constituted actionable negligence against appellant unless there was still time and means unavailed of to avert its consequences through the engineer, while acting "in the exercise of ordinary care." This, by all the authorities, is the law of discovered peril. Ry. Co. v. Broadow, 90 Tex. 30, 31, 26 S.W. 410.

The purpose, therefore, in going into the evidence affecting the engineer was to demonstrate, not whether he did or did not in fact do what he should have, but that his opportunities and means at hand were such that he could have prevented the collision, thus supplying an essential element in the fireman's negligence. That must likewise have been the theory underlying the trial below, else this evidence would not have been in the record. To argue for the application to this situation of the rule quoted from such cases as Texas City Trans. Co. v. Winters (Tex.Com.App.) 222 S.W. 541, and San Antonio Pub. Service Co. v. Tracy (Tex.Civ.App.) 221 S.W. 638, is plainly but to set up a man of straw.

With all due deference, I confess myself unable to determine just what the majority conclusion upon discovered peril is, there appearing to be no community of view between them about it. Judge LANE on original submission expressly held that such issue as to the fireman was in the case, but that the jury's finding upon it was "so against the great weight and preponderance of the evidence that it should not be permitted to stand," thereby sustaining appellants' alternative contention to that effect only (original opinion, page 4 [262 S.W. 902]), and of course remanding the cause for another trial on that issue too. On rehearing, however, the Chief Justice holds just the other way, as follows:

"If required to pass on that question [referring to discovered peril as applicable to the engineer's acts], the majority would agree with the dissenting justice that the evidence does raise the issue. This in no way conflicts with our holding that the evidence does not raise the issue of discovered peril based on the negligence of the fireman as found by the jury. The evidence upon this issue is brief, and in the opinion of the majority can sustain but one conclusion, and that is that the fireman gave the warning as soon as he discovered the peril of the deceased, and that there was nothing in the acts of the occupants of the automobile, or the speed at which it was approaching the crossing, from which the fireman could have anticipated sooner than he did that the occupants of the car would probably attempt to cross the track in front of the approaching train."

Be that as it may, however, I agree with the Chief Justice that under the evidence on both grounds of recovery submitted, it is more logical from the majority standpoint to hold that no issue of discovered peril was raised at all, and that Wagner was guilty of contributory negligence as a matter of law, than to fall back upon the narrow twilight zone between the condition where the evidence is sufficient to raise an issue for the jury and yet insufficient to permit a verdict to stand upon it. There is such a legal domain, but it is often in shadow, and rarely very clear. To solemnly so declare under the undisputed state of this evidence seems to me but to beg the question at issue between the members of this court, and the Chief Justice's rejoinder well-nigh admits that it does.

If my former conclusions of fact were erroneous in any particular, and certainly neither the fluency nor rhetoric in the expression of them necessarily makes them so, it has not been so demonstrated on rehearing. The correctness of not a single quotation from the statement of facts has been challenged. On the contrary, much of the same testimony is reiterated, and different conclusions are then drawn from it; that is all. It accordingly would be profitless to again go into the evidence.

Sincere consideration for the opinion of my associates, however, has led to a re-examination of the record in this respect, with the result that I am unable to change the findings first made. While I still think the preponderance even of the evidence on both litigated issues supported the jury's findings upon them, it is of course unnecessary to go that far in maintaining the legal position taken, merely that there was at least enough evidence on each issue to take both to the jury so strongly supported that this court may not disturb findings thereon. If the states of fact controlling the cases cited and relied on in Judge LANE'S majority opinion are in legal effect not different from those obtaining here (as I think they clearly are), then it seems to me there indubitably are two parallel lines of authorities in Texas applying substantially different tests to the conduct of railway operatives in the same circumstances, and until the Supreme Court chooses between them I prefer, as more consonant with reason and recent judicial trend, the one before quoted from Hines v. Arrant (Tex.Civ.App.) 225 S.W. 770:

"He [the engineer] could not in the very nature of things actually know what was in the mind of the appellee as the latter was driving toward the crossing. It was his duty, if he discovered the appellee approaching the crossing and could reasonably infer that he would likely undertake to cross the track, to use the facilities at hand to prevent a collision, either by stopping * * * or by giving some warning of the train's approach. He had no right to wait until he was absolutely certain that the traveler was going into a place of danger before taking the proper steps to avoid injuring him."

Writ of error was refused by the Supreme Court.

I think the equivalent of the facts which made that expression the law in that case is equally present in this. If the Higginbotham and Antonini Cases do not embody the same doctrine, then the saying of Talley-rand, "The purpose of language is to conceal thought," may explain the difference.

My associates think this fireman had a right to assume that Wagner would stop, and to run him down — or, more softly, to cast the legal consequences upon him — if he did not. I think he had no such right, but was in duty bound to "reasonably infer that he would likely undertake to cross the track." This precise question has been recently certified by this court to the Supreme Court in the case of H. E. W. T. Ry. Co. v. John Kopinitsch (No. 8403) 268 S.W. 923. They further think that Davis, the driver, could not be believed when he directly testified that he did look for the train before going on the track, and that something did in fact interfere with his line of vision. I think they are unconsciously trenching upon the jury's province in this, and should permit their finding upon it to stand.

The view that the laws of physics forbid the conclusion that the fireman could see them and yet the occupants of the automobile could not see the train must really rest upon the discovery of a new law in that exact science, as none of the hitherto known ones are pointed out as having been infracted. The same theory of the Chief Justice, under a like conclusion of fact as to a mutually unobstructed view between an automobile and a train approaching each other, led this court into the wilderness in the recent case of La. Western Ry. Co. v. Jones (Tex.Civ.App.) 233 S.W. 363, but on writ of error the Supreme Court reversed this court's judgment and affirmed that of the trial court, holding in necessary effect that no such violated law of physics existed, and that the question as to Jones' contributory negligence was one for the jury. Jones v. La. Western Ry. Co. (Tex.Com.App.) 243 S.W. 976. Surely, then, it is permissible to decline being taken a second time to Waterloo. Especially so here, because in this instance no mere presumption of ordinary precaution for his own safety on this deceased's part (Jones v. Ry., supra, par. 4, at page 979) had to be depended upon, in view of the driver's direct testimony that it was taken, and, further, because the jury on this trial found — in response, doubtless, to the evidence on this feature cited in the former dissenting opinion — that there was an obstruction of Wagner's view, and that within 50 feet of the track, in answering affirmatively this question propounded by the court at appellant's request:

"Was there anything to prevent or obstruct the view of the occupants of the automobile or either of them from seeing or hearing the train as it approached the crossing, before they reached the crossing and within a distance of 50 feet of the track?"

So there was no basis for the new law of physics to operate upon, and, in its absence, I cannot see how this court, with nothing but a written record to aid it, is in equal position with the jury and trial court to pass upon such a fact issue. It was easily possible, it seems to me — and the jury evidently thought the same thing — for some one of the telegraph poles, the panel of fence, the high board sign, or even the bulk of his companion's body between him and it, to have interfered with the driver's vision at the particular time he looked for the train, just as it was held a singletree might have done in Ry. Co. v. Myrick (Tex.Civ.App.) 208 S.W. at page 937, there being positive evidence otherwise that he did look.

The necessity here for defending the power of the Courts of Civil Appeals to reverse jury verdicts where they are so against the overwhelming weight of the evidence as to be clearly wrong is not perceived. It has not been attacked, the only point at issue being whether any such preponderating weight against it existed. Comment in my former opinion upon the evidence as demonstrating that no special warning was given the occupants of the automobile as they neared the railroad track at least as concerns the blowing of the whistle seems to me to have been justified by these special issues submitted to and the appended findings made thereon by the jury:

"Special issue No. 2. Were the operatives of the engine in question guilty of negligence in failing to give any additional warnings or signals by whistle of the approach of their engine to Gregg street than were given? Yes.

"Special issue No. 2. * * * Did the negligence, if any you have found, of the operatives of the engine in question in failing to give or cause to be given any additional warnings or signals by whistle as the engine approached Gregg street, proximately cause the death of the deceased? Yes."

Only two further observations will be made. The statement in the last majority opinion that "Justice GRAVES has changed his opinion on the issue of contributory negligence presented in this case since the former appeal," while admittedly adverting to a wholly immaterial consideration, is at the same time both inaccurate and inept. After being mentioned at all, it would have been a much happier reference to say: "The case has changed on the issue of contributory negligence between the two trials, and, as wise men do with the times, Justice GRAVES has changed with it." The report of the issues on the first trial, appearing in this court's opinion (224 S.W. 377), shows this. That conflicting opinions of the higher courts upon the question of contributory negligence involved were also then extant is demonstrated by a reference to the cases of Ry. Co. v. Harrell (Tex.Civ.App.) 194 S.W. 971; Ry. Co. v. Harrington (Tex.Civ.App.) 209 S.W. 685 (subsequently overturned by the Supreme Court, 235 S.W. 188), and to those cited by the Chief Justice in this connection. Ry. Co. v. Price (Tex.Com.App.) 240 S.W. 526, from which he quotes, had not at that time been decided. The point has never been that the Price Case does not reflect the true rule, but merely that confusion in fact existed at the former time. That the evidence on the two trials was different was sufficiently indicated before, and, as we cannot agree as to what it was, or its effect, it becomes useless to further advert to it.

The concluding holding on rehearing that the trial court erred in not submitting special issues 2, 3, and 5, requested by appellant, belated as it seems, is a new feature, but I do not think it sound. In view of the determinative questions as raised by the pleadings and evidence as a whole, it seems to me these inquiries went only to evidentiary details, and not to ultimate and controlling issues of fact; if that be their effect, it is not my understanding that the case of Fox v. Hotel Co.,111 Tex. 461, 240 S.W. 517, cited in this connection, overturns the long-established rule that it is not error for the trial court to refuse the submission of evidentiary matter only. In like manner as before, I dissent.