Southern Kansas Ry. Co. of Texas v. Emmett , 139 S.W. 44 ( 1911 )

The verdict of the jury establishes the fact that appellee was not guilty of contributory negligence in his attempt to board appellant's moving train, and that his injuries were received as a proximate result of appellant's negligence in furnishing him incorrect information as to the time of the arrival of his train. The majority hold that the evidence did not warrant the submission of this last issue, for the reason that the negligence of appellant's agent in this respect could not have been the proximate cause of appellee's injuries. To this I do not agree. In the beginning one should treat the question as though appellee when injured was in the exercise of ordinary care for his own safety (for the jury have so found, as to which no complaint has been sustained), and the sole question then is, in the present state of the case, Can it be said as a matter of law that the negligence of appellant's agent in misdirecting appellee as to the time of the arrival of his train is not the proximate cause of his injuries? Ordinarily, the question of proximate cause is one of fact, and it is only in those cases where reasonable minds cannot differ upon the question that it becomes one of law, which the court may withdraw from the jury. It would serve no useful purpose to cite decisions or quote authorities merely announcing the principles which underlie the conception embodied in the phrase "proximate cause." The rule is too well established to admit of controversy, and I readily concur in the announced conclusion of the majority, backed up as it is by all of the decisions that have ever discussed that question, that an act is the proximate cause of an injury when such injury was the natural and probable consequence of the act and one which ought to have been foreseen in the light of attending circumstances. The difficulty is not in stating the rule, but in applying it to the facts of the given case. The decisions cited by the majority were made upon a state of facts so dissimilar from the one at bar as to be of little or no value as a guide in determining the question before us. There are some decisions of the courts of this state which I believe will prove more helpful in determining the question, since they are more nearly like the facts of this case. In Mills v. M., K T. Ry. Co., 94 Tex. 242, 59 S.W. 874, 55 L.R.A. 497, it was held in effect that the negligence of the conductor of a railway train in directing a passenger to return to the ticket office and procure a ticket for passage on that train, and in starting the train before the passenger had had a reasonable time to return and board it, was the proximate cause of an injury received by such passenger in attempting to board such train while in motion. Mr. Justice Williams for the Supreme Court said: "Whether or not the negligence of the defendant constituted a proximate cause of plaintiff's injury must be determined from a consideration of everything that happened. It woud be a mistaken way of viewing the evidence to take separately each act or omission which may be found to have been negligent and inquire if it alone constituted the proximate cause. The combined effect of all may be considered, and when this is done, and if it be also found that no negligence of plaintiff caused or contributed to the result, we think it cannot be said as a matter of law that there was not the proper causal connection between the conduct of defendant and the injury to plaintiff." Practically the same holding was made by this court in M., K. T. Ry. of Tex. v. Gist, 31 Tex. Civ. App. 662, 73 S.W. 857, and a writ of error was refused by the Supreme Court. It is true in the Gist Case that it appeared that the conductor knew of the passenger's attempt at the time to board the moving train; but an examination of the opinion will disclose that no issue of the conductor's negligence in anything he did at the time was submitted, and besides, under the charge as quoted in the opinion, the jury were authorized in effect to return a verdict for the plaintiff upon a finding that the conductor negligently started his train before the plaintiff had had a reasonable time to return with his ticket and board it, thereby assuming that such negligence was the proximate cause of the plaintiff's injuries. Such I think is the necessary effect of that decision. See, also, Missouri Pac. Ry. Co. v. Foreman, 46 S.W. 834. In Laub v. C., B. Q. Ry. Co.,118 Mo. App. 488, 94 S.W. 550, a passenger by the wrong direction of the carrier's servant left the train at an improper place, and in an effort to reboard it a short distance away was injured in consequence of a defect at the end of the platform where the train was standing. Upon the question of proximate cause, the court said: "Defendant contends that under the uncontradicted facts in evidence the negligent act that induced plaintiff to leave the train should be treated as the remote cause of his injuries; the proximate cause being the negligent invitation of the Rockport conductor (a conductor on another carrier whose train was then standing at the place) to plaintiff to cross to the east side platform and the negligent defect at the end thereof; that this conductor was the servant of an independent carrier, and the defective platform its property. * * * This argument appears to lose sight of the fact that defendant contracted with plaintiff to use the utmost care and diligence to carry him safely to his destination. It failed in the performance of a contractual duty when it negligently invited him to temporarily leave the train at the wrong place and then went off leaving him standing there. It put him in a place of comparative danger and left him to his own resources to extricate himself. He was under the necessity of overtaking the train if he could, and the problem confronting his dazed understanding was how best to reach the train. * * * The conclusion is irresistible that defendant's negligent act was the sole producing cause of the injury."

But, independently of the decisions which at best are on a state of facts not identical with the one under consideration, let us apply the test, which is supposed to determine all cases, of whether or not appellee's injury under the circumstances was one that ought reasonably to have been foreseen by appellant. It is undisputed that appellant's agent sold appellee a ticket for passage on that particular train, and therefore knew that he desired to board it at that time and place. It was also proved, and the verdict so affirms, that appellee made known to appellant's agent his desire to go to a restaurant for breakfast, and inquired how long before his train would arrive, and that the agent misinformed him. It is also proved, and the verdict so finds, that appellee, in attempting to board the moving train as he did, was not guilty of contributory negligence, but acted as a person of ordinary prudence would. And the jury have also found as a fact that the negligence of appellant's agent in the respect mentioned was the proximate cause of appellee's injury. What, under the circumstances, ought the company to have anticipated as a result of starting its train at the time it did? Clearly, I think that appellee, who was known to have a ticket, who desired to take passage on that train, and who was temporarily at a restaurant for breakfast, relying on the assurance of the agent as to the time of the arrival of the train, would, on discovering that the train was leaving, make an effort to reach and board it, if a reasonably prudent person under the circumstances would do so. It was appellant's duty, after having given appellee the information it did, to hold its train for the time indicated in the information or until appellee had safely boarded it. As it was, it failed to allow him the promised opportunity to board the train, and thus hindered him in his efforts to take passage, and I do not think it can be said as a matter of law that to put its cars in motion and thus suddenly put him to the choice of being left or of attempting to get upon the moving train was not the proximate cause of injuries received by him in attempting to board the train. I think it is a most reasonable probability, and one that a carrier even in the exercise of ordinary diligence ought to foresee, that a passenger for whom it had promised in effect to wait would hasten to exercise all ordinary care to board the train upon its being started. Upon the point of the company's knowing that appellee desired to board this particular train, this case is on a par with those cited by me because of the knowledge of the company through its servant, the ticket agent.

For these reasons I respectfully dissent.