Texas & N. O. Ry. Co. v. Wagner ( 1923 )

This suit was brought by Mrs. Mamie Wagner, the widow, and Mrs. O. D. Kirkpatrick, the mother, of F. G. Wagner, deceased, to recover damages sustained by them on account of the killing of the said F. G. Wagner at Gregg street crossing in the city of Houston, in a collision between an automobile in which he was riding and a passenger train of the defendant.

Plaintiffs alleged that Wagner's death was the result of the negligence of the defendant, its agents and servants, in operating its train, (1) in not keeping a proper lookout for persons about to cross its railway track at Gregg street; (2) in not giving a proper signal of the approach of its train; (3) in operating said train at an excessive and dangerous rate of speed, and at a rate of speed in excess of the speed prescribed by the ordinances of the city of Houston; (4) in failing to sound the whistle of its engine 80 rods from the crossing, and in failing to keep the engine bell ringing from the time said engine reached a point 80 rods from said crossing until said crossing was passed; and (5) in failing to keep a watchman at said crossing, or to install and maintain gates and automatic bells or other signals to warn persons about to cross its track of the approach of its trains. They further alleged that the fireman on the engine discovered the perilous position of the deceased on the approach of the train in time that by the exercise of ordinary care he could have warned the engineer in charge of the engine in time for the latter, by the use of the means at his command, to have stopped or slackened the speed of the train and have avoided injuring deceased, but that said fireman failed to give the engineer such warning, and that such failure was negligence on the part of said fireman.

The Western Indemnity Company, an insurance corporation, joined as plaintiff in the suit, and alleged that as a result of the death of Wagner it had to pay to his beneficiaries certain sums of money, and was obligated to make further payments in the future, and prayed that it be subrogated to the extent of such sums as it had paid or was obligated to pay by a certain judgment rendered against it in favor of said beneficiaries, the same to be paid out of any judgment which might be rendered against defendant in favor of said beneficiaries. But as there is no controversy presented between said indemnity company and either of the other parties, no further mention of it will be made.

The defendant pleaded a general denial and contributory negligence of the deceased and Gordon O. Davis, who was driving the automobile at the request of the deceased at the time of the accident, in that said parties approached the railway at the point of the accident and undertook to cross the same without taking any precaution to ascertain whether or not a train was approaching; that on approaching said railway they neither looked nor listened for the approach of a train: that the whistle of the engine was sounded, and the bell rung, as required by law, and that, had said parties looked and listened, they could have seen the approaching train for a great distance from the point of the accident, and could have stopped as they should have done, and had they done so they would have prevented the collision.

In answer to special issues submitted to the jury they found:

(1) That the train which collided with the automobile in which the deceased was riding was running at a rate of speed, as it approached the point of the accident, exceeding that prescribed by the ordinances of the city of Houston.

(2) That the operators of the engine were guilty of negligence in failing to give additional warnings or signals, by the blowing of the whistle, of the approach of the engine to Gregg street, then were given, and that such negligence was the proximate cause of Wagner's death.

(3) That neither of the occupants of the automobile failed to use ordinary care to look for the approaching train or to listen for the approaching train, nor were either of the occupants of the automobile guilty of negligence in not stopping the automobile and in going upon the railroad track at the time and under the circumstances they did.

(4) That the fireman discovered and realized the perilous position of the deceased in time to have notified the engineer so that the said engineer in the exercise of ordinary care could have stopped or slackened the speed of the train and have prevented the accident.

(5) That the plaintiff Mrs. Wagner sustained pecuniary damages in the sum of $30,000, and that the plaintiff Mrs. Kirkpatrick sustained damages in the sum of $1,500.

Judgment was rendered and entered against the defendant Texas New Orleans Railway Company in accordance with the findings of the jury, and from such judgment said company has appealed.

This is the second appeal of this cause. Upon the first trial the question of discovered peril was not in the case, but judgment was rendered against the defendant in favor of the plaintiff Mrs. Wagner for $15,000 and for the plaintiff Mrs. Kirkpatrick for $500, upon the findings of the jury that the deceased met his death as the proximate result of the negligence of the defendant, and that the deceased was not guilty of contributory negligence pleaded by defendant. On appeal from such judgment this court reversed the same upon the grounds that the findings of the jury that the deceased was not guilty of contributory negligence as pleaded by the defendant was so against the great weight and preponderance of the evidence as to be clearly wrong, and for such reason the cause was remanded for retrial. See T. N. O. R. R. Co. v. Wagner (Tex.Civ.App.) 224 S.W. 377.

On the last trial the evidence relative to contributory negligence was the same as upon the former trial. The evidence of the several witnesses at the first trial with reference to contributory negligence was read to the jury, and no new evidence other than a few minor and immaterial corrections of the testimony of the engineer, Williams, was offered. Whatever of new evidence was offered was upon the issue of discovered peril, which was not submitted at the first trial.

We shall not undertake to discuss in detail all of the 75 assignments of error presented by appellant, but shall confine our discussion and decision to those issues only which we think control the disposition of this appeal.

Appellant contends that there was no evidence to support the finding of the jury that the fireman on the engine which collided with the automobile of the deceased discovered and realized that the deceased was in a perilous situation in time to have notified the engineer in charge of the engine so that said engineer, in the exercise of ordinary care, could have stopped or slackened the speed of the train and have prevented the accident, but that, if it be mistaken in asserting that there was no evidence to support such finding, then he says that such finding is so against the great weight and preponderance of the evidence that it should not be permitted to stand.

The majority of this court have reached the conclusion that appellant's alternative contention should be sustained. The evidence relative to the question of discovered peril shows that the deceased was traveling in a Ford automobile at the time of his death; that one Gordon O. Davis was driving said automobile at the time of the collision at the request of the deceased; that deceased and Davis had, only a few minutes before the collision, crossed the railway track at the point of the collision going south to Orlando's store, situated on the east side of Gregg street, Houston, and fronting west on said street, and about 175 feet south of the point where the railway track crosses Gregg street, the point of the collision. The deceased and Davis left Orlando's store and drove north, approaching said railway at a rate of speed of 4 or 5 miles per hour. The automobile in which they were riding when moving at said rate of speed could have been brought to a standstill within 6 or 8 feet. Parties in an automobile at a distance of 15 feet or less from the railway track on Gregg street could, by looking, see a train approaching from the east a mile or more, and the fireman on a locomotive approaching from the east could see said automobile in the situation named for a half mile or more.

It is not contended that there was evidence to support a finding that the engineer saw the automobile or its occupants in time to have stopped his train or to have slackened its speed so as to have prevented the collision; indeed, the question as to whether the engineer saw said automobile or its occupants was not submitted to the jury. The only question submitted to the jury in an attempt to show discovered peril was as to whether the fireman discovered the deceased in a perilous situation in time to have warned the engineer of such peril so that said engineer could, by the means at hand, have stopped the train or so slackened the speed of the train as to prevent the collision.

The train which collided with the automobile was approaching the point of collision from the east. The witness Stratton testified that he was standing about one-half block from the point of collision; that he saw the train that day about 3 blocks down the track; that the whistle first attracted his attention to the approaching train; that the train was about 3 blocks down the track when the whistle blew; that he did not hear the ringing of the bell, as he was not paying any particular attention to the ringing of the bell; that he could hear the noise of the approaching train outside of the whistle; that the entire train passed over Gregg street and the last coach stopped between Gregg street and the next street to the west; that the whistle was blown twice before reaching Gregg street; that the train was running about 20 miles per hour: that he saw deceased and Davis when they left Orlando's store, and saw them slowly approach the point of the collision.

The witness Weber testified that he was about a block and a half east from the Gregg street crossing, and saw the approaching train; that the whistle was blown about opposite him.

John Stevens testified that he heard the whistle blown; that at that time the train was about a block or a block and a half from Gregg street.

Susie Spiller testified that she was in her back yard and heard the train whistle, and then thereafter she heard it sounded twice before it reached Gregg street.

Alberta Gross testified that she heard the whistle sounded between Gregg street and Cage street, the first street east of Gregg street, and that she also heard the bell ringing; that the bell was ringing about the time it reached Gregg street.

The undisputed evidence shows that the emergency brake was applied and that the train stopped between Gregg street and the first street to the west thereof.

E. N. Williams, the engineer, testified that his engine was a compound Atlantic type engine: that at the time of the accident everything about his engine was in first-class condition; and that as he approached Gregg street he was running about 18 to 20 miles an hour; that his place on the engine was on the right side of the cab; that the automobile in which deceased was riding approached the crossing from the left side of his engine, and that he did not see it before the collision; that Mr. Trahan was the fireman on the engine; that he is now dead; that when his engine was about 40 or 50 feet from the crossing the fireman called to him to "Look out!" that he then immediately applied the air; that after he applied the air his engine ran about 75 to 90 feet; that there was nothing to prevent the fireman from seeing an automobile 75 feet south of the railway track where it crosses Gregg street; that he could see an automobile 150 feet from the track, and that those in the automobile could see the approaching train when that distance from the track.

Testifying further, he said that to the best of his judgment he was only 50 or 75 feet from the crossing when the fireman called to him to "Look out!" that when such warning was given he immediately applied the emergency brake, and did everything in his power, consistent with the safety of the train and passengers, to stop the same; that it was impossible to have stopped that train any sooner than it was stopped; that it takes an engineer some time to comprehend the warning; that he must get the information from the fireman, then he must concentrate his mind on what to do, and after so doing he must apply the air; that all these things take time; that he did not stop to observe the distance he was from the crossing, but that he applied the air and stopped as quickly as he could — he had no time to consider the distance; that the first he saw of the automobile was when it was coming over the track; that he struck the right rear wheel of the automobile, and if it had gotten one foot further it would not have been struck; that to apply the air all he had to do was to throw the lever that controls the emergency; that he could throw the lever by a quick movement of his hands, and this would immediately apply the air brakes on the entire train; that by the time he was able to throw the lever his engine was about 15 or 20 feet from the crossing; that in his best judgment he was running at a rate of speed of 18 to 20 miles at the time the warning was given by the fireman; that the fireman told him that when he realized that deceased was going on the track he called "Look out!" and that when the fireman said "Look out !" he at once applied the air.

A. Middleton, a locomotive engineer, testified that he had testified as an expert witness in a great many cases; that he gets different prices for his testimony; that the average price is $10 per day and expenses. Testifying further, he stated that in order to stop the train the engineer applies the brakes — the air; that he supposed it takes less than a second to throw the lever working the brakes, and when the lever is pushed around the brakes snap "immediately, like snapping your finger"; that the engineer turns on the air and the sand at the same time, one with one hand and the other with the other hand; that they are right there in front of him; that the sand is blown out with the air, and acts quickly; that it goes down in front of the drive wheels; that to stop a train in an emergency the steam should also be shut off; that a passenger train consisting of four coaches, such as the one in question, running at six miles an hour, could be stopped with safety to the train and its passengers within 5 to 10 feet, at 15 miles an hour, within 40 to 50 feet, at 15 to 20 miles an hour, within 60 or 75 feet; that where an engineer's attention must be called to something by the fireman which would require an emergency stop the mind of the fireman has got to take in the situation, and then he has got to impart his information to the engineer, then the engineer's mind has got to act, then he begins to work the valves; that, however, would not take much time; that when an engineer has knowledge that an object is in front of him the first thing he should do is to stop, but if he cannot stop it would be best to blow the whistle and ring the bell; the engineer must take into consideration the best thing to do to prevent the accident; that the mind works awful fast in cases of emergency, and but little time for the working of the mind would be required.

J. W. O'Brien, another expert witness, testified that a passenger train of four coaches, pulled by an Atlantic compound two-drive engine, with air brakes all in good condition, on level track, with rails dry, everything in good working condition, when running at 18 to 20 miles an hour, could be stopped within 60 to 65 feet.

The foregoing statement, we think, embraces all the evidence even remotely relative to the issue of discovered peril, and, as we have already said, the majority of this court thinks that the finding of the jury that the fireman discovered the deceased in a perilous situation and realized such peril in time to have warned the engineer in time so that the engineer could have stopped or slackened the speed of the train by the use of the means at his command, and thereby have prevented the accident, is so against the great weight and preponderance of the evidence as a whole that it should not be permitted to stand as a basis for depriving appellant of its property.

That the fireman saw the automobile slowly moving toward the railway track at a time when the engine was several hundred yards east of Gregg street, and the point of collision, may be conceded, but such concession would by no means be a concession that he discovered and realized that the deceased was in a perilous situation. That the deceased was not in actual danger of being struck by the locomotive until he drove upon the railway track in front of the approaching train is manifest. Discovered peril, as that term is used in the law, means more than a discovery that one is in a position where he might unreasonably throw himself in peril. It means a discovery of one in a situation of actual danger or peril, from which it is made reasonably to appear to a person of ordinary intelligence that he either could not or would not extricate himself, or that he was in a situation such as would reasonably raise an apprehension in the mind of a person of ordinary intelligence, in the exercise of ordinary care, that he would place himself in peril.

It has been held by our courts that, when the operatives of railway locomotives see a child of tender years, or one known to such operatives to be wanting in discretion, or one doing some act which would reasonably indicate that he intended to place himself upon the track, approaching the railway track in front of their approaching locomotive, such operatives should not speculate upon the probabilities as to whether such child or person would or would not go upon the track in front of their locomotive, but they should reasonably anticipate that such persons might place themselves in a position of danger and be injured unless said operatives used ordinary care to use the means at their command to prevent such injury; but we know of no case in which it has been held that such operatives could or should reasonably anticipate that an automobile approaching a railway track at 4 or 5 miles per hour, driven by persons possessed of ordinary intelligence, would go upon the railway track in front of an approaching passenger train in plain view, which was at the time only 50 to 75 feet distant, unless they were doing some act, other than slowly approaching the track, which would reasonably indicate that they intended to go upon the track, and we think that it should never be so held. It seems to us that the natural and reasonable conclusion under such circumstances would be that such persons were intending to and would bring their automobile to a stop before entering upon the railway track, and not that they would do the unreasonable thing of endangering their lives by driving upon the track in front of such approaching train. It seems to us that the slow approach of the automobile to the railway track at the point where the approaching train was in full view and close at hand would have reasonably induced and did induce the operatives of the locomotive to conclude that the driver of such automobile would stop it before it reached such railway track.

It is, we think, within the knowledge of all men of common observation and experience that innumerable drivers of automobiles, when, approaching a railway track, they see the near approach of a moving train, will move slowly toward said track to await the passing of such train. It would be an intolerable and unreasonable rule to require operatives of trains to stop such trains every time they saw an automobile approaching the railway track at a rate of four or five miles an hour. We cannot get our consent to subscribe to such a rule, unless compelled to do so by some superior authority. The courts should not be used as a vehicle to transfer the property of any person, natural or artificial, to another under the facts of this case relating to discovered peril, no matter how able the former is to respond, nor how needy the latter.

In support of the conclusions reached by the majority of this court we cite and quote from Pillow v. Texarkana F. S. Ry. Co.,55 Tex. Civ. App. 597, 119 S.W. 128: S. A. A. P. Ry Co. v. McMillan, 100 Tex. 562, 102 S.W. 103; H. T. C. Ry. Co. v O'Donnell, 99 Tex. 636, 92 S.W. 409; and Schaff v. Gooch (Tex.Civ.App.) 218 S.W. 783.

In Schaff v Gooch, supra, in which it is held that the burden of proof rests upon the plaintiff to prove the issue of discovered peril, the court said:

"The rule of law is well settled in this state that in order for a recovery to be had under the doctrine of discovered peril, which eliminates the defense of contributory negligence, it must be made to appear that the injured party was in a position of imminent danger, and that the defendant or those acting for him, discovered the dangerous situation of the injured party in time to have averted the injury by the exercise of proper care. Texas Pac. Ry. Co. v. Breadow, 90 Tex. 26,36 S.W. 410; Morgan Bros. v. M., K. T. Ry. Co., 108 Tex. 331,193 S.W. 134; Galveston Electric Co. v. Swank, 188 S.W. 705."

In S. A. A. P. Ry. Co. v. McMillan:

"In applying the doctrine of discovered peril the railroad company cannot be held liable because the servant was negligent in failing to discover the person or in failing to recognize his peril, but it must appear from the evidence that the servant actually saw the man, realized his peril and that he would not get off the track. Railway Co. v. Breadow, 90 Tex. 26, 36 S.W. 410, above cited. It must also appear that the discovery of the peril was in time for the trainmen by the use of the means at hand to stop the train before coming in collision with the men."

In Pillow v. Ry. Co., supra:

"The rule is well settled that, in the absence of actual discovery and the appreciation of the peril, the rule of discovered peril has no application. Railway Co. v. Kelleher (Tex.Civ.App.) 107 S.W. 64."

Again:

"Assuming that the employés did see appellant when he flagged the train, he was not then in a position of peril. They had a right to assume that he would get out of danger before the train reached him."

In H. T. C. Ry. Co. v. O'Donnell, supra:

"The enginemen being ignorant of O'Donnell's deafness, were charged with no duty which would arise from the existence of that infirmity; but they had the right to treat him as a person in full possession of his senses, and, seeing him near the track, might presume that he would make proper use of his faculties, and would get far enough away from the track to insure his own safety. They were not required to anticipate that he would be guilty of an act of negligence, either by remaining in danger, if he was so or by putting himself in danger. If O'Donnell was negligent to render the railroad company liable, the evidence must show that O'Donnell was in a place of danger when seen by the employés, that the men in charge of the engine saw him and realized that he was in a dangerous position, and also that he either could not or would not probably extricate himself from the dangerous situation."

In Fort Worth D.C. Ry. Co. v. Shetter, 94 Tex. 196, 59 S.W. 533, Judge Williams, in speaking for our Supreme Court with reference to discovered peril, said:

"But it must be borne in mind that upon this issue the question is, Was it known to the brakeman before plaintiff went upon the track, not simply that he desired to cross it, but that he would do so where his act would be negligent and expose him to danger? In other words the brakeman must have known that plaintiff was in danger because he was about to do a negligent and dangerous act. We think it well settled that one person is not bound to anticipate negligent conduct on the part of another, and therefore that a jury would not be justified in finding that the brakeman, before he saw plaintiff actually in danger, knew that he was negligently going into danger."

Again:

"Certainly it is at least equally true that trainmen are not bound to assume that a person not on the track will get on it, where it would be negligent and dangerous for him to do so, and, as they would not be bound to assume it, a jury could not properly find that they knew it would be done in the absence of proof of knowledge."

Even if the fireman saw the deceased, in the present case, moving slowly towards the track as the train approached the crossing, he had the right to assume that deceased would stop at a place of safety and not go upon the track. He certainly was not required to anticipate that deceased would be guilty of an act of negligence by putting himself in danger.

In appellees' brief the cases of Galveston Electric Co. v. Antonini (Tex.Civ.App.) 152 S.W. 845, St. Louis S.W. Ry. Co. v. Ford (Tex.Civ.App.) 237 S.W. 656, and Hines v. Arrant (Tex.Civ.App.)225 S.W. 770, are cited as supporting their contention that the fact that the fireman saw the automobile in which the deceased was riding moving slowly toward the railway track was of itself sufficient to require him to anticipate that the automobile would probably be driven upon the track in front of the approaching train.

We do not think the decisions cited are authorities for any such contention. The effect of the holding in all these cases is that, if the manner in which one approaches a railway track is such as would reasonably indicate to the operatives of the train that he intended to go upon the track in front of the train, it is the duty of said operatives to use ordinary care to use all the means at hand to prevent injuring such person. In the present case, however, it is shown by the undisputed evidence that the fireman knew that the view of the occupants of the automobile was unobstructed, and that if they were looking and listening for the approaching train, as he had a right to assume they were, they would see and hear said train, and he had a right to assume, in the absence of some act other than that they were moving slowly toward the train, that they did not intend to drive upon said track, but, to the contrary, that as reasonable human beings they would stop until the train had passed.

We think the decisions cited by us, some of which are by our Supreme Court, fully sustain the conclusions just expressed, and that the conclusions reached by us are sustained by common sense and by the weight of authority. For the reasons pointed out, we sustain the contention of appellant above discussed.

We next come to a consideration of appellant's contention that the finding of the jury that the deceased and his driver, Gordon 0. Davis, were not guilty of contributory negligence is so against the great weight and preponderance of the evidence that it should not be permitted to stand as a basis for the judgment rendered. On a former appeal of this case we sustained a similar contention, and reversed the judgment and remanded the cause. 224 S.W. 377. At the last trial, from which this appeal is prosecuted, the evidence adduced upon the former trial relative to contributory negligence was read to the jury under agreement of both parties, and no new evidence relative to that issue was offered. We shall therefore not set out the testimony in detail, but will here refer to said former opinion, as the testimony is there set out in full, with the exception of a few witnesses, whose testimony will be here stated.

Witness Stratton testified that he was standing about one-half block from the point of collision; that he saw the train as it approached, when it was about three blocks distant; that the whistle was sounded about the time he first discovered the approach of the train; that he was paying no attention to the ringing of the bell, and could not say whether it was ringing or not; that he could hear the noise of the train as it approached; that the whistle was blown twice before reaching the point of collision.

Witness Weber testified that he heard the whistle of the approaching train; that it was blown when about a block and a half from the point of collision.

John Stevens testified that the whistle was blown about a block or block and a half from the point of collision.

Susie Spiller testified that she was in her yard and heard the train approaching, heard the whistle blown, and that it was blown twice thereafter before it reached the point of collision.

Alberta Gross testified that she heard the whistle blown; that it was blown between Gregg and Cage streets, the first street east of Gregg street, and that she also heard the bell ringing; that the bell was ringing at the time it reached the point of collision.

E. N. Williams, the engineer in charge of the engine propelling the train, testified that the whistle was blown at all street crossings intervening between Englewood yards, a point more than a mile east of the point of collision, and the point of collision, and the bell was rung continuously from the time they left said Englewood yards until the point of collision was reached.

The undisputed evidence shows that a person approaching the railway track from the south where it crosses Gregg street could see a train approaching Gregg street from the east for more than a mile after such person had gotten within 50 feet of said track; that there was nothing that could have obstructed the view of such person.

We do not think any of the testimony above stated is contradicted directly or by any circumstance.

The undisputed evidence of Gordon O. Davis, the driver of the automobile in which the deceased was riding at the time of the collision, shows that they had, just before the accident, crossed the railway track at the point of the collision, and that they knew where the track was; that they approached the track for about 175 feet at a rate of speed of 4 to 5 miles per hour. He testified, however, that when in about 12 to 15 feet of the crossing he looked both ways to see if he could see a train, and that he saw none; that he did not listen for an approaching train. See testimony of this witness set out in opinion, 224 S.W. 377. He testified that he could not explain why he did not see the approaching train, but that as a fact he did not see it.

We feel constrained to support the contention that the finding of the jury complained of is so against the great weight and preponderance of the evidence that it should not be permitted to form the basis for the judgment rendered. Practically the only excuse or reason assigned by appellees as to why the occupants of the automobile did not see the approaching train is that when they looked for the train, when 12 to 15 feet from the track, they might have been looking into the solid body of an upright telephone pole on the right of way, or at a cattle guard which was perhaps not over 4 feet from the ground. These suggestions, however, were not raised by the testimony of the witness Davis, or any other witness, but only by counsel for appellees in their briefs. We do not think there is any merit in such suggestion. It can hardly be contended that the occupants of the automobile had exercised ordinary care for their own safety by looking for the approach of a train at the very instant they saw that a telephone pole obstructed their view, while in the very next instant such pole would not have so obstructed their view, if it had so done at any point.

In Railway Co. v. Edwards, 100 Tex. 22, 93 S.W. 106, our Supreme Court said:

"The law is well settled that a traveler approaching a railroad crossing must exercise ordinary prudence in going upon the track to see that he may do so with safety. He cannot excuse the absence of all care by showing that those in charge of a train have also been guilty of negligence."

To the same effect are the decisions in the following cases: Baker v. Collins (Tex.Civ.App.) 199 S.W. 519; Lancaster v. Foster, 260 F. 5, 171 C.C.A. 41; Southern Traction Co. v. Kirksey (Tex.Civ.App.) 181 S.W. 545; Ry. Co. v. Paine (Tex.Civ.App.) 188 S.W. 1033.

As said in Railway Co. v. Loeffler (Tex.Civ.App.) 59 S.W. 558:

"We fully recognize the importance of a strict observance by the courts of the rule that jurors are the exclusive judges of the credibility of witnesses and of the weight to be given to their testimony, but this rule neither requires nor contemplates that the mind and conscience of the court shall be entirely and unreservedly surrendered to the judgment of a jury upon all questions of fact that may arise in the trial of a case. When the verdict of a jury is so against the weight and preponderance of the evidence as to be clearly wrong, it is the duty of the court to set such verdict aside; and the grave responsibility thus placed upon the judiciary of determining whether or not the evidence in a particular case is legally [reasonably] sufficient to deprive a citizen of his property cannot be evaded."

In G., C. S. F. Ry. Co. v. Gaddis (Tex.Com.App.) 208 S.W. 895, Judge McClendon, in discussing the duty of the appellate courts, said:

"We are met with the suggestion that a contrary opinion has been reached by twelve jurors, a trial judge, and three judges of the Court of Civil Appeals, from which it is urged that such conclusion must be reasonable. We are not unmindful of the force of this suggestion. However, the reasonableness of a conclusion to be drawn from undisputed facts is not be tested by the reasonableness of the individuals who arrive at it, but by the inherent soundness or reasonableness of the conclusion itself; and, when such question is presented to an appellate court for decision, such court must decide the question for itself, untrammeled by what other minds may have concluded, and with the consciousness that its own conclusion may not in every instance meet the full approval of others equally capable but not charged with the ultimate duty of decision. A different conclusion by other minds is, of course, persuasive. Which fact makes valuable the opinions of other jurisdictions not binding, as a matter of law, upon this jurisdiction. But in the last analysis each court is charged with the duty and must for itself determine the question of reasonableness of a particular conclusion from a given undisputed state of facts; and, with all deference to those with whom we here differ, we have been unable to reach any other reasonable conclusion but that contributory negligence as a matter of law is shown in this case."

A judgment based upon a finding which is, in the opinion of the appellate court, contrary to the overwhelming weight of the evidence, should be by such court reversed. It is not only the right of but the duty of the court in such case to reverse the judgment. T. N. O. Ry. Co. v. Wagner (Tex.Civ.App.) 224 S.W. 377; Ry. Co. v. Hart (Tex.Civ.App.)178 S.W. 795; Ry. Co. v. Loeffler (Tex.Civ.App.) 59 S.W. 558; Hines v. Roan (Tex.Civ.App.) 230 S.W. at page 1082.

By appellant's fourth proposition it is insisted that, where a cause is submitted to a jury on special issues, the defendant is entitled to have all his defenses affirmatively submitted when proper request is made therefor. The proposition states a correct abstract proposition of law (Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517); and, if this cause is again tried, the trial court should comply with the rule announced.

For the reasons pointed out, the majority of this court have reached the conclusion that the judgment should be reversed, and the cause remanded, and it is accordingly so ordered; Associate Justice GRAVES dissenting.

Reversed and remanded.