DocketNumber: No. 2896.
Citation Numbers: 94 S.W.2d 268
Judges: WALKER, Chief Justice.
Filed Date: 4/11/1936
Status: Precedential
Modified Date: 1/12/2023
The railroad track of appellant, Texas New Orleans Railroad Company, runs east and west through the town of Waller, Waller county, Tex. The depot is on the south side of the track and the Goodrich hotel on the north side. About 9 o'clock p. m. of the 27th day of May, 1933, for the purpose of going to a barber shop on the south side of the railroad track, A. T. Billingsley walked from the Goodrich Hotel to the public railroad crossing near the depot, which, at that time, was blocked by one of appellant's eastbound freight trains. Billingsley stopped near the crossing for the train to clear the crossing that he might go on to the barber shop. While standing there at the crossing, he was struck by an open swinging door on a refrigerator car in the passing train, fifteen or twenty cars back from the engine, and instantly killed.
This suit was filed by A. M. Billingsley and his wife, Mrs. A. M. Billingsley, the father and mother of the deceased, and Alfred Billingsley and Pauline Billingsley, minors, a brother and sister of the deceased, to recover damages for the death of A. T. Billingsley, alleging generally, as appellees, plaintiffs below, construe their petition, that appellant was guilty of negligence in operating its train with a car door in such a loose or unfastened condition that it swung out from the side of the car while the train was in motion, and that, as a proximate result of this negligence, A. T. Billingsley was struck by the swinging car door and killed. Appellant answered by general demurrer, general denial, and by pleas of six specific acts of contributory negligence against the deceased. The evidence offered by appellees went no further than to sustain the fact conclusions stated above; it failed to show (a) when or how the defects in the door occurred; *Page 269 (b) the ownership of the refrigerator car with the defective door; (c) how long this car had been in appellant's possession at the time Billingsley was killed; (d) where it was put into the train; (e) from whose possession it was received; (f) and whether, at the time Billingsley was killed, this car had been in appellant's possession a sufficient time for it to discover the defect in the door; (g) there was in evidence no specific fact from which the jury could determine that, in the exercise of ordinary care, it should have discovered the defects in the door before Billingsley was struck and killed. Answering special issues, the jury found against appellant the issues of negligence charged against it by appellees' petition, and acquitted the deceased of all acts of contributory negligence. Appellant has duly prosecuted its appeal from the judgment entered in favor of appellees on the verdict of the jury.
On the construction we have given appellees' petition, the question presented by this appeal is whether or not the evidence was sufficient as a matter of law to constitute a cause of action against appellant. On authority of Texas Pacific Ry. Co. v. Endsley,
"The fact that the injury occurred, and that such injury resulted from a defective condition of the defendant's car, is not sufficient to establish the necessary fact that the railroad company was negligent in permitting the door to be in that condition. Gulf, C. S. F. Ry. Co. v. Kizziah,
No decision of any court in Texas has been cited to us criticizing the Endsley Case. It was cited by this court as controlling in Texas
N. O. Ry. Co. v. Smith,
"At the time the door swung out and struck the plaintiff, the train had moved but a few hundred feet from where it had been made up and left standing. These circumstances furnish some evidence of the fact that the door was in the same loose and unfastened condition when the train crew made the inspection they did as it was when it swung out and struck the plaintiff. With this fact found by them, which is presumed to have been done, it was the further province of the jury, in weighing the testimony, to determine that the loose and dangerous condition of the door was discoverable to the defendant and its servants, by the exercise of ordinary care, and that the defendant was negligent in operating its train with one of the cars in the train in that condition."
Appellees would distinguish the case at bar from the Endsley Case on the following grounds: (a) In this case appellant owned and operated the train. There is no merit in this point. The record in neither case raised the issue that the railroad company owned each and every freight car in the train. (b) Appellees contend that the refrigerator car in this case was put in the train at some point west of the town of Waller. That is not a correct construction of the facts. The record shows only that the defective car was switched into the train at some point west of the depot in the town of Waller; under the record, it might have been switched into the train in the town of Waller. There was no evidence upon the issue as to where or when appellant got this car, nor from what company it was received. On this point the evidence in this case is on all fours with the evidence in the Endsley Case. (c) Appellees would bring this case within the doctrine of the Greene Case, supra, on the ground that the evidence raised against appellant the issue of negligence in inspecting the defective car. Direct and affirmative evidence was offered in the Greene Case raising against appellant the issue of negligence in inspecting the defective car, but there was no evidence on that issue in this case, and on identical facts the Supreme Court said in the Endsley Case that the fact that the injury occurred was not sufficient to support the inference of negligence. (d) We quote as follows from appellees' brief:
"In the Endsley Case there was no evidence showing that the train had been made up and that it was on its way out of the yard to make a run across country and from town to town and no evidence to show that the particular car upon which the door was supposed to be open and swinging had not just been brought in from another road, and thereby it was just as reasonable to suppose that the door came loose while in the possession and control of another railroad as it was that it came loose while in the possession of the appellant in the Endsley Case."
There is no distinction in principle on the facts brought forward by appellant on this proposition and the facts in the case before us. We have given most careful consideration to every point of distinction alleged by appellees and overrule them as without merit.
Appellees began their argument with the statement, "Again the fight is on between Scarborough and Endsley. This time it is a clear-cut contest," referring to Missouri, K. T. Ry. Co. v. Scarborough,
"The case of Missouri, K. T. Ry. Co. v. Scarborough,
Appellees invoke the Scarborough Case in support of their judgment by the following argument: *Page 271
"That the Scarborough applies to and controls the case at bar is too clear for serious argument. The only difference between the cases is that in the instant case Billingsley was where he, as a member of the public, had a right to be, standing at an intersection where a public street of the town of Waller crosses the railroad, waiting for appellant's train to pass, and at a reasonable safe distance therefrom, under ordinary circumstances, as the jury inferentially found, and justly so, when he was struck and killed by an open swinging door on one of the refrigerator cars located somewhere near the middle of the long freight train. Appellant's employees operating the said train must necessarily be held to know, or by the exercise of ordinary care they would have known, that people were liable to be standing at the public crossings in the town of Waller waiting for the train to pass and that the open, swinging and projecting car door would probably strike and injure or kill them. Therefore, the undisputed facts of the case at bar make out a stronger case for appellees than the Scarborough."
We overrule this contention. The facts of the case at bar are distinguishable from the facts of the Scarborough Case on the ground that the negligence of appellant in that case "consisted in the manner in which its employees had loaded the cars with material which protruded from the cars and caused the injury." (Quotation from opinion of Mr. Chief Justice Hightower in the Smith Case supra.)
Appellees have vigorously attacked the Endsley Case as being unsound; they say:
"The duty resting upon railroads, under the law, with respect to open doors on railroad cars in a train being operated, and with respect to projections in loads on such cars, is identical; railroads are required to use ordinary care to have car doors securely fastened and the same duty to inspect same from time to time to discover any defects in locks or fastenings; and particularly the law requires the exercise of this duty on the part of railroads and its employees in making up a train of cars prior to sending the train out on a run; and such identical duty is required with respect to reasonably safe loading of its cars to prevent projections at such distance beyond the edges of the cars as to endanger the public. To argue that there is any difference either with respect to the duty or with respect to the danger of projections in loads and open swinging doors is to argue an absurdity. The Supreme Court — no doubt through inadvertence and what it thought was a necessity in order to arrive at justice in the Endsley Case — permitted itself to get into such an indefensible position in making the following statement: `The case of Missouri, K. T. Ry. Co. v. Scarborough,
"The truth is, the evidence in the Endsley Case to show that there was an open or swinging door on one of the cars was so indefinite and flimsy that it is apparent that the Supreme Court was convinced that the claim for damages was not just; and in order to attain justice in the case and deny a recovery it became necessary to distinguish it from the scarborough, which had been definitely approved by it; but there being some slight evidence, flimsy though it was, that the car door was open, the Supreme Court could not put an end to the case by holding that there was no evidence to show that the door was open. Therefore, in order to attain what the Supreme Court deemed a just end to the Endsley Case, it became necessary to distinguish it from the Scarborough; and after having suggested some reasonable distinctions, such as lack of evidence as to the ownership of the car, as to how long it had been in the yard, also as to how long it had been in the possession of the railroad company, that the car was being pushed in the yard, which indicated that it had probably just been brought in and may have come from another road, or that the break in the door *Page 272 may have occurred while it was on some other road — all or any of which reasons would have been amply sufficient upon which to base the desired distinction — it then went too far in assigning the suggested additional reason for such distinction based upon a supposed difference between a projection in a load on a car and an open swinging door."
From the State report of the opinion of the Supreme Court in the Endsley Case,
"Hart, Mahaffey Thomas, for defendant in error. — The rule res ipsa loquitur, in Texas, is that where a duty is owing by the defendant, and the thing which inflicted the injury is shown to be under the management of the defendant or its servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the managemet use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care; and it is not limited to cases where some contractual relationship exists. In order to sustain the verdict, appellee is not forced to rely solely upon the doctrine of res ipsa loquitur, because there is, in this case, affirmative evidence of negligence. The natural and probable result of running a train at a high rate of speed along a track constructed upon a curve, near to and on the outside of which is a pathway, which the company had licensed the public to use, and which was in almost constant use by the public, with a door or other thing hanging loose and swinging from one of the cars, would be to injure persons in said pathway; that is, it would be negligence. Washington v. Missouri, K. T. Ry. Co.,
It thus appears that the Supreme Court had before it and overruled the very contentions now advanced by appellees.
The maxim res ipsa loquitur does not support appellees' judgment for the same reason given by Judge Brown in denying its application to the facts of the Endsley Case:
"If the maxim, `Res ipsa loquitur,' be applicable to this character of case, the evidence must suggest the character of the negligent act; it is not sufficient that it may raise a suspicion of negligence of some kind."
It follows that the judgment of the lower court should be reversed and judgment here rendered in favor of appellant; it is accordingly so ordered.
The motion for rehearing is in all things overruled.
McCray v. G. H. S. A. Ry. Co. , 89 Tex. 168 ( 1896 )
G. C. S. F. Ry. Co. v. Kizziah , 86 Tex. 81 ( 1893 )
Texas N. O. R. Co. v. Beard , 91 S.W.2d 1080 ( 1936 )
Hawthorne v. Texas N. O. R. Co. , 84 S.W.2d 1015 ( 1935 )
Texas P. Ry. Co. v. Endsley , 103 Tex. 434 ( 1910 )
Washington v. M. K. T. Ry. Co. , 90 Tex. 314 ( 1897 )
M.K. T. Ry. Co. v. Thompson , 11 Tex. Civ. App. 658 ( 1895 )
Texas N. O. R. Co. v. Smith , 285 S.W. 913 ( 1926 )
Ft. Worth D.C. Ry. v. Gatewood , 185 S.W. 932 ( 1916 )
Texas P. Ry. Co. v. Greene , 291 S.W. 929 ( 1927 )
Houston E. W. T. Ry. Co. v. Hickman , 207 S.W. 550 ( 1918 )
M.K. T. Ry. Co. v. Scarborough , 29 Tex. Civ. App. 194 ( 1902 )
St. Louis S.W. Ry. Co. of Texas. v. Tune , 158 S.W. 238 ( 1913 )
Vernon Cotton Oil Co. v. Catron , 137 S.W. 404 ( 1911 )
Gamer Co. v. Gammage , 162 S.W. 980 ( 1913 )