Houston E. & W. T. Ry. Co. v. McHowell

2 S.W.2d 550

• Court: Court of Appeals of Texas
• Decided: January 20, 1928
• Docket: No. 1606.
• Status: Published

Opinions

WALKER, J.

This was a suit for damages by appellee on allegations that appellant had negligently caused the death of her husband. On a former appeal, H. E. & W. T. Ry. Co. v. McHowell, 278 S. W. 258, in an opinion by our Chief Justice, this court reversed a judgment in favor of appellee on the ground that the facts and circumstances were not sufficient to show with reasonable certainty or to authorize a reasonable deduction or inference by the jury that McHowell’s death was caused by his stumbling over some of the ballasting material and falling under appellant’s passenger train. The case was remanded for a new trial on the ground that the plaintiff might “be able, upon another trial, to produce some character of evidence tending to show, with more certainty the cause of J. T. McHowell’s death.” The case was again tried, and appellee read in evidence the entire statement of facts before ns on the former appeal. In addition, she called to the stand three of the witnesses used on the former trial, W. S. Scott, R. -L. Harris, and M. T. Gibson, and put in evidence the depositions of A..O. Diamond and J. O. Bethel, the engineer and fireman of the train which passed north through Lufkin shortly before MeHowell’s body was found. The ease was submitted to the jury on this evidence, and judgment rendered in favor of appellee. As a statement of the case on this appeal, we' adopt and make a part of our opinion the entire opinion on the former appeal. In addition, we take the following statement of the new evidence from the appellant’s brief:

“Mr. Scott testified, in addition to his former testimony, that no depredations and thefts or any thing of that kind occurred in respect to the ears McHowell was watching on the night of the accident.

“Mr. R. L. Harris, on the first trial (which was had about six months after the accident), testified that he could not say whether or not the deceased’s feet were further south or further north than his shoulders. On the last trial heJ was positive that the feet were further south than were the shoulders; that the neck was against the rail.

“On the first trial Mr. Harris testified that he did not observe anything on Mr. McHowell’s clothing or his arms or hands, or any part of his body. On the last trial, he testified that the clothing had red-looking dust and dirt on it; that it was distributed all over the body, and looked fresh.

“In all other respects, the witness Harris’ testimony was practically the same on the last trial as on the former trial.

“M. T. Gibson, on the first trial, testified that the neck to the body was lying right against the rail with his feet out from it. On the last trial he stated that the neck and shoulders (the neck was mashed away) were some eight to twelve inches from the rail, and that the body was lying at an angle which he twice drew while on the witness stand, and one drawing was measured by the witness Garrison, and proved to be an angle of 65 degrees, and the other drawing, which was also measured by the witness Garrison, proved to be an angle of 57 degrees.

“As to the condition of the body of the deceased, the witness Gibson on the first trial testified that, other than having the head cut off, there were one or two small bruises on his chest, and a little piece of hide knocked off one of his hands. On the last trial he testified that there were bruises across the chest, across the shoulders, and the point of the shoulders, and possibly one on tbe back. Also on the last trial he testified that, in addition to the skinned place on one hand, there was a right, smart grease in the palm of the right hand.

“With the exception that Gibson, in addition to above, also testified as to the location of the grease boxes and beams on the sides of the passenger coaches generally, which evidence was undisputed, his testimony was otherwise practically the same as contained in the record made' on the first trial.

“The witnesses Diamond and Bethel testified that they were the engineer and fireman on the north-bound passenger train, which is presumed to have run over McHowell, and that they saw no one on the track as they approached the depot at Lufkin; neither did they see any one walking between the main line and the passing track as they approached said station.”

On this statement, together with the statement made by the Ohief Justice on the former appeal, It is the conclusion of the court that the evidence offered by appellee did not strengthen her case. Therefore, on the authorities cited on the former appeal and the analysis therein made on the legal effect of the testimony, the judgment of the trial court in favor of appellee must be reversed.. A review of the record convinces us that ap-pellee would not be able to strengthen her case upon another trial; therefore it becomes our duty to render judgment here that she recover nothing on her allegations, and that appellant go hence without day and recover its costs.

Reversed and rendered.