Freeman v. Huffman

206 S.W. 819, 1918 Tex. App. LEXIS 1159

• Court: Texas Commission of Appeals
• Decided: December 11, 1918
• Docket: No. 11-2578
• Status: Published

Opinion

SADLER, J.

(after stating the facts as above). In the opinion on the.first appeal, the Court of Civil Appeals, in passing on the question of whether or not the cause should have been submitted on the issue of discovered peril, said:

“While not intimating any opinion as to the probative force of the evidence on this phase of the case, we think it was sufficient to require the submission of the issue of discovered peril to the jury.”

And in the second opinion the court finds that the facts upon the second trial were substantially the same as in the first trial.

In the last opinion, the Court of Civil Appeals seems to base its affirmance upon the rule of stare decisis, and since “the trial court followed directions given in the opinion upon the former appeal in this case, and submitted only the issue of discovered peril,»’ affirmed the judgment.

It becomes necessary to analyze the evidence set out above in order to determine whether or not there was sufficient evidence before the court to authorize it to submit the issue of discovered peril to the jury. ■

The evidence is undisputed that at the time of the accident there was sufficient light between the coal car and tender for the brakeman to have seen the plaintiff while he was between the cars. Plaintiff says that, at the time he was between the cars, and “after I had placed my left foot on the knuckle or shoulder of this coal car and was pulling myself up — I was up possibly halfway and had pulled my weight up- off of my right foot — I saw a brakeman pass by this opening where I was going through on the opposite side of the train.” “He had a lantern in his hand, and, as he passed that opening where I was, he had his face turned in my direction, and I caught his eye as he passed by. He was looking in my direction, and I looked in his eyes. His eyes were open, and I saw his eyes,”

Dolan, the brakeman, says:

“I had my lantern with me, and I could see clear across the space if I was looking that way. * * * I did not see this man in there between those cars.”

[1] Under the evidence, as thus presented, in our opinion, it became a question for the jury to determine as to whether or not the brakeman saw the plaintiff. It is true that there is no direct, positive testimony by the plaintiff that the brakeman, at the time he passed did in fact see him; but plaintiff did, testify to circumstances, which, if true, taken in connection with the testimony of the brakeman, might be sufficient to require the jury to determine that fact. Plaintiff says that the brakeman was looking in his direction, that he was close to the place where plaintiff was, that it was perfectly light at that place, that he saw the brakeman’s eyes, and that he looked right into the brakeman’s éyes. The brakeman says that it was sufficiently light at the place where plaintiff was injured for him to have seen between the cars. In this state of the record, we are unable to say that this issue should not have been presented to the jury. We therefore conclude that, so far as that element in discovered peril is concerned, the evidence justified the court’s charge.

There is another element, however, which it becomes necessary to establish before the rule of discovered peril can be invoked in support of plaintiff’s cause. That is, whether or not, even though the brakeman saw plaintiff he knew of Ms perilous position, and could, by the use of every means at his disposal, have prevented the injury. Stating it another way: Although the brakeman may have seen the plaintiff between the cars, may have seen Mm with Ms foot on the draw-head, may have known that to be a dangerous position, and perilous to tire plaintiff in the event the cars should be moved, did he know that the cars were about to he mbved, and did he have time to have prevented the injury by the use of every possible means at his command?

[2] If the circumstances presented by this record are such that reasonable minds might draw a different conclusion respecting' the failure of the brakeman to have been able, by the use of all the means at his command, to have prevented the injury, then it becomes a question • for the jury to determine upon the facts adduced, and the court should have so presented the matter as to have enabled the jury to determine this issue. However, if, under the facts and circumstances as presented by this record, there is no room for reasonable minds to differ in the conclusion that the injury could not have been prevented by the brakeman after discovery of plaintiff’s perilous position, then the court should have resolved the issue against the plaintiff, since the evidence would not be sufficient to meet the legal measure entitling plaintiff to have the jury pass judgment upon it. Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059.

If there is any room for ordinary minds to differ as to conclusion to be drawn from the facts and circumstances in this record, then the court would not have been authorized to take the case away from the jury; on the other hand, if the evidence is of such character as that all ordinary minds will unite upon the proposition that the brakeman could not have prevented the injury by the use of all the means at his disposal, then . the court should not have submitted the issue to the jury. Wallace v. Southern Cotton Oil Co., 91 Tex. 18, 40 S. W. 399; T. & P. Ry. Co. v. Breadow, 90 Tex. 26, 36 S. W. 410; Cowles v. M., K. & T. Ry. Co., 96 Tex. 24, 67 S. W. 1078, 69 S. W. 541; M., K. & T. Ry. Co. v. Eyer, 96 Tex. 72, 70 S. W. 529.

Plaintiff testified on this trial that, when he started to go through between the engine tender and the coal car, and was pulling himself up, and about the time he was pulling himself up with all his weight on his left foot, the cars moved, causing his foot to slip off this knuckle; that he was possibly halfway up and had pulled his weight off of his right foot when he saw the brakeman pass the opening on the opposite side of the train; that the cars moved about six inches; that it was not very long after the brakeman passed before he received his injury; that the brakeman, according to his judgment, had time to have taken something like four steps.

He states that he was trying to get over there to weigh the car just as quick as possible ; that he had got up with his weight on his left foot, which was on the knuckle of the coupler, when they made the move; that he could not have been there as long as a couple of seconds; it was done on the instant; that it was but a short time from the time he put his foot on the running board of the tender and pulled himself up until his foot was caught.

He states that he was pulling himself up to go over on the other side as the brakeman passed; that he had just raised his right foot, making an effort to step over, but had not got up in a standing position at all when the cars moved; that he could not say how long tlie man was under his observation, possibly a second; that he just saw him as he passed by that open space. lie testified that he stepped on the tender of the engine with his right foot, placed his left foot on the drawhead, and, as he started to pull himself up, his left foot slipped down between the drawhead and part of the car, and at the same time the train moved a few inches, catching his foot and mashing it; that just before his foot was caught he saw the brakeman pass toward the scales on the opposite side of the train.

Taking the testimony as strongly as permissible in behalf of the plaintiff, and it shows that when plaintiff stepped with his right foot on the running board of the tender, took hold of the handle bars on either side, placed his left foot on the drawhead between 'the tender and the coal car, had begun to pull himself up by his arms; had relieved the weight from his right foot, and while in the act of pulling himself up, the brakeman passed the open space; that while in this position, and before he was able-to pull himself to an erect position on the drawhead, the train moved, mashing his foot.

From the time plaintiff saw the brakeman (assuming that the brakeman also saw plaintiff), there only remained that length of time intervening between the moment the brakeman saw the plaintiff to the moment the car moved (which under the testimony is shown to have been before the plaintiff had lifted himself to an upright position) in which the brakeman could have acted in an effort to prevent the injury.

There, is an entire want of evidence showing that, at the time the brakeman is claimed to have seen plaintiff, he then knew that the train was to be moved. There is no evidence showing when the brakeman ascertained that the train was to be moved, and the only evidence on that question is the testimony which shows that the brakeman was near the scales when it was moved.

According to the plaintiff’s positive testimony, it was just a second from the time he stepped upon the running board of the tender until he received the injury. However, he shows that, when he saw the brakeman jjass, he then had his left foot on the knuckle or shoulder of the coal car and was pulling himself up; having removed the.weight off of his right foot. When the cars moved, causing his foot to slip off of the knuckle, he had his left foot on the knuckle and was pulling himself up, but had not reached an upright position on the drawhead.

Assuming that the brakeman saw him in the position described by xdaintiff at the time he passed, did he know that the train was about to be moved, and did ‘he have the time, from that moment until the train, did move, in which to have acted in an effort to prevent plaintiff’s injury?

Without going into the field of conjecture, is it reasonable to conclude from this record that Dolan, the brakeman, knew of the necessity of moving the train, or the purpose to do so? We think not. A reasonable assumption, based on the evidence, is that the passing of the brakeman and the movement of the train were in such juxtaposition in relation of time as to have rendered it improbable that the brakeman did know that the train was to be moved.

Should it be assumed that the record raises the issue of Dolan’s knowledge at the time that the train was to be moved, yet, is it not apparent that knowledge on his part of plaintiff’s peril and the movement of the train were so near simultaneous as to lead to the very reasonable conclusion that he was powerless to have prevented the injury?

We are of opinion that if thei brakeman, at the time, had been in possession of all the information necessary to have demanded action on his part, there did not remain time in which he could have prevented the train from moving by the use of any of the means which might have been in his power.

Assuming that the brakeman should have immediately called to the fireman not to move or to hold the train stationary or to give him any character of warning, it would have been necessary for the fireman to have communicated this to the engineer, and it is not reasonable to assume that this could have been done without the period of time intervening between the time plaintiff saw the brakeman and the movement of the train.

[3] It must be a matter of common knowledge that some time must intervene between the receiving of an impression by one and its communication to another, whether such communication be by word of mouth or by some other means. We are therefore of the opinion that, measured by the legal rule, the evidence in this record is not sufficient to raise the issue of the failure of the brakeman to utilize the means in his hands or possession or at his command so as to have prevented plaintiff’s injury.

[4] The evidence, therefore, being insufficient to raise the issue of whether or not the brakeman knew that the train was likely to move and that he could have prevented it from moving, the court was not authorized to submit the issue of “discovered peril” to the consideration of the jury. Having submitted the issue, for the reason hereinbefore given, we are of the opinion that the facts and circumstances are insufficient to support the verdict and judgment in this cause.

The plaintiff in error also complains with reference to the admission in the evidence of the ordinances of the city of .Rockdale.

[5] We are inclined to the opinion that, in view of the record, this evidence was not admissible. Since, however, the court withdrew it from the consideration of the jury, the error became immaterial. The other matters complained of are not deemed of sufficient importance to require consideration.

We are therefore of opinion that the judgment of the Court of Civil Appeals and of the district court should be reversed. It appearing that the evidence has been fully developed, judgment should be rendered in favor of defendants below.

PHIIjTjIPS, O. J. The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.

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