Gulf, C. & S. F. Ry. Co. v. Snow ( 1940 )

On Rehearing.

Appellant assigns error against our order reversing and remanding this case for a new trial; the point is made that the judgment should be rendered in its favor. The assignment is overruled. There is no explanation of the fact that the deceased’s head was bloody at the time appellant’s engineer first discovered him lying on the track. We cannot anticipate the evidence on another trial. On' this proposition, in Texas Employers’ Ins. Ass’n v. Herring, 280 S.W. 740, 741, the Commission of Appeals, citing many supporting cases, said:

“We must reverse this case because of the failure of evidence in the respect mentioned. It must be either remanded or rendered for plaintiff in error. Since it does not conclusively appear that the case has been fully developed on the former trial, we have decided that justice may be better sub-served by a remand of the case.”

See also Fort Worth & D. C. Railway Company v. Atkinson, Tex.Civ.App., 254 S.W. 1028; Chapman v. Witt, Tex.Civ.App., 285 S.W. 331; Dunlap v. Squires, Tex.Civ.App., 186 S.W. 843; Conoway v. Morrow, Tex.Civ.App., 147 S.W. 344; Allen v. Anderson & Anderson, Tex.Civ.App., 96 S.W. 54; Starkey v. H. O. Wooten Grocery Co. et al., Tex.Civ.App., 143 S.W. 692. In support of its proposition that the judgment should be rendered, appellant cites the opinion by this court in Texas & N. O. R. Co. v. Beard, Tex.Civ.App., 91 S.W.2d 1080, 1081. That case is not in point; there it affirmatively appeared that appel-lees had fully exhausted their testimony. The case .at bar, as shown by our opinion, was tried on the wrong theory of the law, and we cannot say that the evidence has been exhausted. Appellees tried this case on the theory that they were entitled to the presumption that the deceased was not guilty of negligence. It is our conclusion that on the particular facts of this case ap-pellees cannot invoke that presumption. Appellant’s motion for rehearing is overruled.

We have again reviewed carefully our conclusions as expressed in the original opinion. Appellees’ motion for rehearing is overruled.