Kirkland v. Texas & Pacific Railway Co.

372 S.W.2d 367, 1963 Tex. App. LEXIS 1775
CourtCourt of Appeals of Texas
DecidedOctober 16, 1963
Docket5591
StatusPublished
Cited by3 cases

This text of 372 S.W.2d 367 (Kirkland v. Texas & Pacific Railway Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirkland v. Texas & Pacific Railway Co., 372 S.W.2d 367, 1963 Tex. App. LEXIS 1775 (Tex. Ct. App. 1963).

Opinion

FRASER, Chief Justice.

This is an appeal from a judgment rendered by the District Court of Ector County, Texas. Plaintiffs-appellants brought suit for damages for the death of Don Kirkland and for property loss arising out of a grade crossing collision between a train owned by appellee and a tractor-trailer gasoline transport truck driven by Don Kirkland. The case was tried to a jury and judgment was rendered by the court in favor of the defendant.

The jury, in answer to special issues, found that at the time and on the occasion in question the defendant railway company’s train was'being operated at a speed o'f 72 miles per hour, and that such rate of speed was negligence and the proximate cause of the accident. The jury also found that the crossing in question was extra-hazardous. The jury then answered the issues of discovered peril in favor of the defendant railroad; and further, the jury found that deceased failed to keep a proper lookout, and that such failure was a proximate cause of the collision. The jury also found that the train was plainly visible as it approached the crossing and was in actual, hazardous proximity to the crossing-before the deceased, Don Kirkland, reached a point fifteen feet from the nearest rail of the track upon which, the train was approaching, and that the failure of the deceased to stop his vehicle within fifty feet and not less than fifteen feet, under the circumstances there present, was a proximate cause of the collision. The jury found damages in the sum of $4,150.00 for the partnership which owned the truck,'and the sum of $37,500.00 for the other plaintiffs, who were 'the widow, Mrs. Kirkland, and *369 her minor children, and the surviving parents of the deceased.

Appellants’ first point charges the trial court with error in overruling appellants’ objection to statements made by counsel for the defendant in his address to the jury. Appellants maintain that the alleged improper argument and ruling occurred as follows:

“The deposition, after Cunningham had asked him page after page of questions I finally got down to it and I asked him a question, and this was his answer, and I think it must be yours, in answer to whether he and the fireman used all possible means at hand, ‘Mr. Simmons, when you saw that boy was in a dangerous spot, did you do everything on God’s green earth that you could possibly do to avoid hitting him,’ and his answer was, T sure did’. Don’t convict that old man. Maybe you haven’t seen him, Mr. Watts, but don’t send a man who has been married to the same woman since 1924, who has held the same job on the same railroad for the same company for thirty years, and has worked for the same company since 1909. Don’t send him from his retirement to his grave, and place a stain of homicide on him * * *
“MR. WATTS: (Interrupting) If your Honor please, we object to that as that is highly improper, nobody is trying to convict him of homicide, and we ask the Court to instruct the Jury not to consider it. Nobody has tried to make a complaint, or ever will.
“THE COURT: Overruled.
“MR. WATTS: Note our exception.”

Appellee replies that this bill of exception was qualified by the trial court as follows:

“With reference to Mr. Hudson’s argument in cause number B-17,967, styled Mrs. Don Kirkland, et al. v. Texas & Pacific Railroad Company, the Court can only certify that he made in substance the argument contained in the attached transcript of the then Official Court Reporter’s notes. The Court further certifies that Mr. Watts did interrupt and make some sort of objection to Mr. Hudson’s argument, the Court being unable to certify from memory, however, as to the exact point of such objection, but being of the opinion that it was at approximately the point shown on page 8 of the attached transcript, the Court likewise being unable to certify from memory the exact form of the objection or as to whether or not the sequence set out on page 8 of the attached transcript is correct, but being of the opinion that some discussion was had between' Couñs'el and the Court which'is not shown on the-attached transcript.”

On the basis of the above qualification by the trial court, appellee maintains that the matter is not accurately or properly before us for review, and we do feel there is some merit in its contention. The qualification of the court becomes a part of any bill of exceptions, and requires the appellate court to accept the qualified bill in its qualified form. Craddock v. Humble Oil & Refining Co., 234 S.W.2d 137 (Tex.Civ.App.; n. r. e.) ; Cannady v. Dallas Ry. & Terminal Co., 219 S.W.2d 816 (Tex.Civ.App., n. w. h.).

It is also well established that the bill must be complete and clear and must fully set forth the matter complained of. 4 Tex. Jur.2d 39, Appeal and Error, sec. 507.

This leaves us confronted with a bill of exception wherein the court says that to the best of his recollection the matter occurred substantially as set forth in the bill. While there may be some doubt as to the completeness' and necessary clarity of the bill here involved, we hesitate to say that it is entirely inadequate, in view of the fact that the court does say, in his' qualification, that'the argument made was substantially *370 the same as that set forth in the bill, and Nat Mr. Watts did make some character of objection to Mr. Hudson’s argument. So while there may be some question as to the adequacy of this bill, we believe that it should be considered. However, we do not believe that the matter presents reversible error. The courts have always been rather strict with regard to matters taking place in the presence of the jury, but at the same time every appellate court has, of necessity to realize that in the heat and confusion of trial, especially one as serious as this, many advocates become forceful and ardent in their arguments. The courts have therefore held that the argument must have been calculated to cause, and probably did cause, a rendition of an improper verdict and judgment in order to be serious enough to warrant reversal of the case. The jury here, of course, knew they were trying a civil case and, as the bill of exceptions itself will show, the objection by Mr. Watts, apparently promptly made, stated that nobody was trying to convict the engineer of homicide, and that nobody had tried to make a complaint or ever would. This in itself should have served, at least in some degree, to advise the jury that no one was trying to ask them to convict the engineer of the commission of a homicide.

Language of this type has occurred many times before and the courts have been reasonably consistent in their holdings that, although this type of argument may be improper or irrelevant, it is not necessarily reversible. Appellants maintain, in their brief, that had this argument not occurred, the jury would likely have answered the issues relating to discovered peril differently, and the court would therefore have been able to write a judgment based on the provisions of the discovered peril doctrine.

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Bluebook (online)
372 S.W.2d 367, 1963 Tex. App. LEXIS 1775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirkland-v-texas-pacific-railway-co-texapp-1963.