Chicago, R. I. & G. Ry. Co. v. Harris , 1930 Tex. App. LEXIS 521 ( 1930 )

As shown in the opinion of Justice BUCK on original hearing, no one witnessed the accident which resulted in the death of N.J. Harris, and circumstantial evidence alone was relied on to prove that his death resulted from stepping on the end of the running board on the cattle car attached to the caboose of the train. Plaintiff's theory was that Harris attempted to go from the caboose to the front end of the train, and that in order to do so he climbed to the top of the caboose and then passed over the opening between it and the cattle car ahead; that when he stepped upon the end of the running board on top of the cattle car it suddenly sprang down by reason of the defective supports thereunder, and the furnishing of which in that condition was negligence on the part of the defendant, and that by reason of such insecure condition of the running board Harris was thrown off his balance and was caused to fall between the cattle car and caboose and thereby to be killed.

Assuming for the sake of argument that testimony introduced by the plaintiff tended to show that Harris did attempt to pass from the top of the caboose to the cattle car, and that he lost his life in making that attempt, yet in order to make out plaintiff's case she had the burden of showing that Harris did not lose his balance by reason of the motion of the train or some other cause and fall between the cars while attempting to step across the opening, but that he crossed the opening without so falling; that he stepped upon the end of the running board of the cattle car and when he did so it sprang down by reason of the insecure supports thereunder sufficiently to throw him off his balance; that he was thus caused to lose his balance; and by reason thereof was caused to fall between the caboose and the cattle car. In order to support findings in plaintiff's favor upon those issues, it was necessary in this case to support one inference or presumption by another inference or presumption, in violation of the rule announced by our Supreme Court in Fort Worth Belt Ry. Co. v. Helen Jones, 106 Tex. 345, 166 S.W. 1130, 1132, in the following language: "A presumption of fact cannot rest upon a fact presumed. The fact relied upon to support the presumption must be proved. ``No inference of fact should be drawn from premises which are uncertain. Facts upon which an inference may legitimately rest must be established by direct evidence, as if they were the facts in issue. One presumption cannot be based upon another presumption.' 16 Cyc. 1051; Missouri Pac. Ry. Co. v. Porter, 73 Tex. 307,11 S.W. 324."

And the rule announced in that case has been uniformly followed by many other decisions such as G., C. S. F. Ry. Co. v. Davis (Tex.Civ.App.) 161 S.W. 932 (writ of error refused); Medlin Milling Co. v. Mims (Tex.Civ.App.) 173 S.W. 968 (writ of error refused); St. L., S. F. T. Ry. Co. v. West (Tex.Civ.App.) 174 S.W. 287 (writ of error refused) Coffman v. Texas Midland Ry. Co., 59 Tex. Civ. App. 387,126 S.W. 619; T. P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049; T. P. Coal Co. v. Kowsikowsiki, 103 Tex. 173, 125 S.W. 3; M., K. T. Ry. Co. v. Greenwood, 40 Tex. Civ. App. 252, 89 S.W. 810 (writ of error refused); Garrett v. Hunt (Tex.Com.App.) 283 S.W. 489.

In T. P. Coal Co. v. Kowsikowsiki, 103 Tex. 173, 125 S.W. 3, 4, cited above, our Supreme Court, in holding that the judgment could not be supported on inferences there relied on, had this to say: "Again it is said that the defendant was in a position to clear away all these doubts. This consideration has force where a plaintiff has proved a state of facts which, while not free from question, is yet sufficient, in the absence of explanation, to give rise to an inference of negligence on the part of defendant. But it has no application where the facts shown are equally consistent, as they are in this case, with all these hypotheses, viz., that the injury was caused (1) by the negligence of deceased, or (2) by that of defendant, or (3) by that of both deceased and defendant. 6 Thompson on Neg. § 7698 and cases cited."

In Gunning v. Cooley, 281 U.S. 90, 50 S. Ct. 231, 233, 74 L.Ed. ___, the following was quoted with approval from a former decision of the same court: "When a plaintiff produces evidence that is consistent with an hypothesis that the defendant is not negligent, and also with one that he is, his proof tends to establish neither."

In another decision by the same court, New York Central Railroad Co. v. Ambrose, 280 U.S. 486, 50 S. Ct. 198, 199, 74 L.Ed. ___, a judgment allowing a recovery for the death of an employee was reversed for lack of sufficient evidence to support it. There was no eyewitness to the accident, but plaintiff relied on circumstantial evidence to sustain a recovery. In disposing of that case the court said: "In any view of the matter, the respondent (plaintiff), upon whom lay the burden, completely failed to prove that the accident was proximately due to the negligence of the company. It follows that the verdict rests only upon speculation and conjecture, and cannot be allowed to stand. Chicago Co. v. Coogan,271 U.S. 472, 478, 46 S. Ct. 564, 70 L. Ed; 1041, and cases cited. The utmost that can be said is that the accident may have resulted from any one of several causes, for some of which the company was responsible, and for some of which it was not. This is not enough."

In Slocum v. Erie Railroad Co. (C. 0. A.) 37 F.2d 42, 44, the court said: "The jury were allowed to infer that there was an unusual jar from the mere fact that the decedent fell from the car. The witnesses testified to no such jar, but quite to the contrary, and there was no proof of how or why Slocum fell. He may have stumbled or fainted. Whatever the cause, there was no evidence justifying the inference that it was the neglect to warn, him of the turning off of the steam and the running in of the slack. * * * From whatever point of view we analyze the evidence of this unfortunate accident, we reach the conclusion that there was no proof of negligence on the part of the railroad which caused the death of Slocum."

In Betcher v. Southern Pacific Co. (C.C.A.) 29 F.2d 735, a judgment in favor of the plaintiff for the death of a caretaker who fell between two cars and the negligence upon which a recovery was sought consisted of allegations that the accident was occasioned by a failure of the engineer to sound warning signals before starting the train. In that case the following was said: "We are of opinion that the alleged failure of the engineer to sound two blasts of the whistle, as a signal that the train was about to start, was not shown to be the proximate cause of Witham's death. The theory of appellants is that he was stooping over the vents and was thrown off his balance, although it would seem that the taking up of slack would have given him time to brace himself as effectually as would a signal from the engine. There is no direct evidence on the subject. The circumstances leave the proximate cause in doubt, and are as consistent with the inference either that Witham stumbled, or fell between the cars, as they are with the theory of appellants. The result is that the evidence is equally consistent with two or more theories, so that it is impossible to determine the real cause of the accident."

To the same effect are the decisions in the following cases: Williams Sign Co. v. Rodgers (Tex.Civ.App.) 24 S.W.2d 478; Mayor v. Breeding (Tex.Civ.App.) 24 S.W.2d 544; Patton v. Texas Pacific Railroad Co.,179 U.S. 658, 21 S. Ct. 275, 45 L. Ed. 361.

Upon those authorities the writer is of the opinion that the assignment of error, addressed to the refusal of the court to instruct a verdict in favor of the defendant, should be sustained.

The writer is of the opinion further that the assignment of error to the refusal of the court to permit the test to be made in the presence of the jury of the model which was constructed by the defendant's car foreman, W. K. Smith, which ruling is referred to and discussed in the opinion of Justice Buck on original hearing, should be sustained. Smith was introduced as a witness by the defendant, and testified that the running board on the model was an exact replica of that on the cattle car in controversy; that he had examined the lumber of the running board and found that while the same had apparently been in use for several years, the lumber was sound and on account of its seasoned condition the end of the running board was less flexible than that shown in the model, which was constructed of new lumber. After testifying to the examination made of the running board on the cattle car in question, he testified as follows: "The material was sound. I had occasion to step across from the running board extension of the caboose over on to the running board extension of the stock car. It did not have a tendency to give down when I stepped on it. It was firm and solid. * * * I have no way of telling how long that stock car running board and its extension had been in service only by the preservation and appearance of it. The car was twelve or fifteen years old. * * * There is not anything unusual for a car twelve or fifteen years old to have a running board on it about a year old; that is nothing unusual; it is nothing uncommon to renew all woodwork of a car; * * * There is approximately an inch and one half vibration in the springs. This vibration in the springs has something to do with the vibration of the running board extension. I would say it had ninety per cent. to do with it. Yes, I have had train service. I mean to say the springs have as much as ninety per cent. to do with the vibration; you ride in your automobile and you know how much your spring vibrates. The vibration of the car is due ninety per cent. to the springs. I know that from my experience in riding. I mean to say just the ordinary running of the car with those springs and the condition the bracket was in, with those nuts off, the situation of vibration was due ninety per cent. to the springs of the car."

The bill of exception shows that the test proposed to be made in the presence of the jury which the court refused to permit was with only one of the metal supports of the running board extension in place and the other one turned down.

It seems clear to the writer that the actual test proposed would have given the jury a better idea of whether the end of the running board could have sprung down sufficiently to cause the deceased to fall, and that defendant was entitled to the benefit of that proof.

Accordingly, the writer is of the opinion that the motion for rehearing should be granted and the judgment of the trial court reversed and that judgment should be here rendered in favor of the appellant upon the assignment addressed to the refusal of the court to instruct a verdict in favor of the defendant; but if the case be not finally disposed of under that assignment, that at all events the judgment should be reversed and the cause remanded.