Schaff v. Ridlehuber , 261 S.W. 523 ( 1923 )

On Second Motion for Rehearing. In view of the fact that two of the judges participating in the former judgments and opinions in this case are no longer members of the court, permission to reargue the case was granted upon request of counsel. We have carefully considered all the questions presented in the appeal, and have reached the conclusion that the only matter requiring further consideration in a written opinion is that involved in the holding of the court upon rehearing that the evidence does not support the trial court's judgment. In no other respect will the former opinions of this court be disturbed.

This was an action by the surviving wife of an employee of the receiver of a railway company, for compensatory damages for the death of her husband, alleged to have been caused by the negligence of the receiver. Deceased, at the time of his death, was engaged in interstate commerce; therefore the action is governed by the federal Employers' Liability Act (U.S. Comp. St. § 8657-8665) and the Safety Appliance Act (U.S. Comp. St. § 8605, et seq.). This is conceded by both parties. The burden of proof rested upon appellee to establish negligence of the appellant, and that such negligence was the proximate cause of her husband's death. The rules of law generally applicable to the issue of proximate cause control in this class of cases. Lumber Co. v. Beatty,110 Tex. 227, 218 S.W. 363; Railway v. Behne (Tex.Com.App.) 231 S.W. 354; Davis v. Wolfe, 44 S. Ct. 64, 68 L.Ed. ___.

The petition alleged two independent grounds of negligence: First, that the tender tank leaked, thereby causing the engine steps to be slippery; and, second, that the wooden tread to the bottom step had been worn to such an extent as to present a slanting edge, thereby rendering it unsafe. It was alleged that deceased, while in the discharge of his duties, was attempting to board the engine, and that as a result of the negligence alleged his foot slipped from the step, resulting in his fall and death.

The cause was submitted to a jury upon a general charge, in which these two grounds of negligence were submitted in the alternative. If therefore there was no evidence in support of either one of the two grounds of negligence, a reversal of the judgment is required. Lancaster v. Fitch,112 Tex. 293, 246 S.W. 1015; Weisner v. Railway (Tex.Com.App.) 207 S.W. 904. With the charge so framed, the burden of proof rested upon appellee to establish negligence in both the respects alleged, and also to establish that deceased met his death by slipping from the step.

The evidence is without contradiction that the packing around the valve stem was not sufficiently tight to prevent leaking when the tank was full. This valve stem extended from the bottom of the tank, through a tool box, up to the top of the tank, where it was operated by hand. The stem was a small iron rod, and from the bottom of the tool box to the top of the tank it was inclosed in a small iron pipe, at the top of which was a nut, which screwed down upon soft rope packing. When the tank was full, the surging of the water, caused either by the operation of filling the tank or by the motion of the train produced a leaky condition. The water thus escaping ran over the side of the tank, through the gangway, and onto the steps. The evidence showed that this manner of valve construction was used almost universally on locomotives, and passed the inspection of the Interstate Commerce Commission inspectors. The evidence also showed that the steps were exposed to all conditions of weather, and were necessarily wet in damp or rainy weather, and that sand accumulations on the cab floor were frequently washed off by a hose, and this water passed out through the gangway and onto the steps, causing them to be frequently wet.

While the writer has some doubt whether, under the evidence, this leaky condition around the valve stem constituted negligence, and, if so, whether it could be regarded as the proximate cause of an injury of this character, he does not feel disposed to dissent from the conclusion upon this issue reached by the eminent jurists who sat in the case on the original hearing. The evidence shows that deceased met his death under the following circumstances:

The train in question was a local freight, operating between Waco and Granger, which left Waco in the morning of August 4, 1920, and arrived at Granger about 4:40 in the afternoon of that day. It had just taken water at a water tank, and the steps were wet from the leak above noted. Deceased had gone ahead some little distance to throw a switch, at which point he waited for the engine to reach him. The ground at that point was smooth, level, and flush with the ties. The only witnesses who testified to having seen him at or about the time of the accident were the fireman, who was seated in the cab on the left or east side of the engine (the train was moving south at four or 5 miles an hour, and deceased was on the west or right side of the track); the conductor who was towards the rear of the train, hanging onto the side of one of the cars; and Robert Fails, a negro employee of an oil mill, who was 125 yards west of the track. The conductor did not see deceased at the instant of the accident, but saw him immediately before that time, when he was a few feet from the engine and approaching the steps. The brakeman saw above the gangway the upper part of his body, down to the lower part of his chest, and saw him fall or disappear. Fails testified to seeing the accident just as it happened. According to his testimony deceased reached for the handholds with his left foot on the ground. He states positively that his foot never was on the step but that the step struck him at the top of his right shoe, and deceased then fell and was killed. Deceased was about 5 feet 10 or 10 1/2 inches high, weighing about 170 pounds. The gangway of the engine was between 4 1/2 and 5 feet above the top of the rails. We may fairly assume that it was at least 5 feet above the surface of the ground. From the testimony of some of the witnesses it may reasonably be inferred that, if deceased was standing on the ground, only his chin would be visible from the inside of the engine above the gangway.

In the opinion on rehearing it was held that the evidence was not sufficient to show that the steps were worn "beyond such as would be necessarily inferred from their use, and no evidence to indicate that they were worn in such a manner as to render them to any extent unsafe." It was also there stated:

"In our opinion herein we also used the following language: `Deceased was seen to fall from where the steps were situated.' We do not mean by this language to indicate that he was seen to fall from the steps, but only that he was in the vicinity of the steps when he was seen to fall. No one saw him on the Steps."

We have carefully reviewed the statement of facts, and, while the evidence would warrant a finding that the steps were not worn to any substantial extent, there is evidence that the wooden tread on the bottom step was worn through the center at the front or outer edge, and that this wearing was to such an extent as to render it unsafe to one attempting to board the engine while in motion. We think it unnecessary to quote the evidence on this point. It is collated in appellee's motion for rehearing. We hold the evidence sufficient to support the judgment In this regard.

From the above statement of the testimony, it is clear that there is no direct evidence that deceased met his death by slipping from the step. Fails was the only witness who testified to having seen the accident in sufficient detail to explain the exact manner in which deceased met his death. It is clear, however, from all the evidence, that deceased was attempting to board the engine by means of the steps. The testimony of Fails negatives the theory that deceased slipped from the steps. If this testimony were undisputed, and there were no circumstances which tended to discredit it, other than the fact that the witness was in the employ of appellant, a serious question might be presented whether appellee had met the burden imposed by the law of proving her case by a preponderance of the evidence. If the testimony of Fails were eliminated entirely, then we think it a fair inference to be drawn from the facts and circumstances in evidence that deceased met his death by slipping from the step. The evidence viewed from that standpoint would be in part circumstantial; the circumstances being that deceased was attempting to use a defective step in the proper discharge of his duty, that the jury were warranted in assuming that he was exercising proper care for his own safety, and that no other satisfactory explanation for the accident was afforded by the evidence. Cases in which like inferences have been upheld, where the evidence was certainly no stronger than in the present case, are by no means rare. Bock v. Dry Goods Co. (Tex.Com.App.) 212 S.W. 635; Hutcherson v. Street Ry. Co. (Tex.Com.App.) 213 S.W. 931; Cement Co. v. Moreno (Tex.Com.App.) 215 S.W. 444: Railway v. Rowe (Tex.Civ.App.) 224 S.W. 928, affirmed in this regard (Tex.Com.App.) 238 S.W. 908; Railway v. McDade,191 U.S. 64, 24 S. Ct. 24, 48 L. Ed. 96; Myers v. Coal Co., 233 U.S. 184, 34 S. Ct. 559, 58 L. Ed. 906. It would probably be impossible to find two cases where the same combination of circumstances is presented. The facts in the cited cases illustrate very forcefully the principle which we think has application to the state of facts with which we are now dealing.

The evidence of Fails does not stand uncontradicted by circumstances. The jury were not required to accept in toto the testimony of any witness. Railway v. Shelton (Tex.Com.App.) 208 S.W. 915. Especially is this true where such testimony is inconsistent with inferences properly drawn from other evidence in the case. The testimony of Fails that deceased had his left foot on the ground at the time the step struck his right shoe is in direct conflict with the testimony of the fireman that he saw the lower part of deceased's chest above the gangway, if we adopt, as was the jury's right, the reasonable conclusion to be deduced from the testimony of a number of witnesses, that the height of the gangway was too great to expose that part of deceased's body to the view of one situated as was the fireman. We do not mean to say that this is a necessary conclusion from the testimony in this regard, but we do say that it is a reasonable deduction therefrom. The jury may have fairly concluded from the testimony that deceased was not upon the ground at the time the fireman saw him, which conclusion would necessarily be in conflict with the testimony of Fails that his left foot was on the ground. The fair inference from the testimony would warrant disregarding the evidence of Fails, at least in this respect, and with this evidence disregarded the reasonable inference may be drawn from the testimony that deceased met his death by slipping from the defective step.

Appellee's motion for rehearing is granted. The former judgment of this court, reversing the trial court's judgment and remanding the cause to that court for a new trial, is set aside, and the judgment of the trial court is hereby affirmed.

On Further Motion for Rehearing. In a lengthy motion for rehearing, supported by a written argument, counsel for appellant, with great earnestness and zeal, assail the conclusions reached in the last opinion in this case, and particularly the conclusion that the evidence warranted disregarding the evidence of the witness Fails, on the ground that he was contradicted by circumstances which could be fairly deduced from the testimony of other witnesses. There is also some criticism of certain statements made in the opinion concerning the evidence.

A further review of the record, in the light of the elaborate motion and argument, does not convince us that we were in error in holding that the testimony of the fireman, who was seated in the cab on the east side of the engine, to the effect that he saw as low as the lower part of Ridlehuber's chest above the gangway, warranted the conclusion that Ridlehuber was not upon the ground at that time. The fireman, it is true, was not upon a level with the gangway, but was seated in the fireman's seat. In this position he could, of course, see more of Ridlehuber's body than one whose eye was on a line with the gangway. However, he was across the engine from the gangway, and Ridlehuber was very close to the side of the engine. If Ridlehuber had been standing upon the ground, the factors determining how much of his body could be seen by the fireman would be the latter's distance from and the elevation of his eyes above the gangway, the elevation of the gangway above the ground, the distance of Ridlehuber from the gangway, and whether he was in an erect position. Upon none of these elements is the evidence conclusive. That Ridlehuber was in the act of reaching for the handholds to board the engine, and must necessarily have been very close to its side, cannot be seriously doubted.

Aside from this feature of the case, however, the jury were warranted in rejecting Fails' version of the accident. Two of the witnesses, one a brother and the other a brother-in-law of Ridlehuber, testified to a conversation with Fails, in which he stated that he did not see the accident, and did not know how it happened; "that the first intimation that he had that there had been an accident was that somebody said, `Look at that white man."' The fact that these witnesses were related to Ridlehuber, and were therefore not disinterested, only went to the weight, and not to the admissibility, of their testimony. That Fails was an employee of appellant placed his testimony also in the category of that of an interested witness. These were matters which the jury were warranted in considering in the exercise of their peculiar prerogative of passing upon the credibility of the witnesses and the weight to be given to their testimony. The evidence tending to support the conclusion that Ridlehuber slipped from the step is of such a character that we would not feel justified in setting aside the verdict upon that issue.

Objection is made to the statement in the opinion that Fails was "125 yards west of the track." The witnesses testifying upon this point placed this distance all the way from 50 feet to 125 yards. No measurements were taken, and the distance was only estimated by the several witnesses. In giving the distance in the opinion, we were merely stating the evidence most strongly for appellee, the only proper viewpoint when passing upon the sufficiency of the evidence as a matter of law to support the verdict. The opinion must be read in the light of the particular question before the court.

The motion for rehearing is overruled.