Opinion
No. 3929.
Rehearing Denied October 30, 1930.
Appeal from Kaufman County Court; Chas. Ashworth, Judge.
Suit by F. A. Williams against the Texas Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
Reversed and rendered.
The suit was to recover the value of a mule alleged to have been killed through the negligence of the appellant in operating its trains. The trial resulted in a judgment for the appellee.
The evidence is without conflict, and establishes the facts herein stated. On the night of January 7, 1929, three mules belonging to appellee escaped from his lot. The next morning two of them were found and driven back home. Later in the morning the third mule was found dead on the railway right of way. When found the mule was lying, as proven, "inside the right-of-way about fifty or seventy-five feet from the cattle guard." The place was in the corporate limits of the city of Terrell, and at a point where a public street crossed the railway track. There are cattle guards on both sides of the crossing, and the track was fenced up to the right of way. The fence and the cattle guards were both in good condition and stock proof. The locality of the accident was covered by the stock law. No one saw the accident. No one saw the mule from the time it escaped from the lot until found dead.
There was every indication that the mule had been struck and killed by some passing train. Mr. Moorland, witness for the plaintiff and who found the mule dead, testified: "I found that the mule had been hit right at the cattle guard. I don't know whether (at the time hit) she was in the cattle guard or close to it, but the mule was knocked fifty feet or more down the track. The rails on the cattle guard were knocked off, and hair and blood was along there. Her hind legs were broken and entrails knocked out, and she had been hit about the hips and bowels. The mule was on the crossing and was knocked on the right-of-way. Yes, I know the mule was on the crossing." The section foreman, who also found the mule dead, testified: "On January 8, 1929, I found a mule lying by the track. The mule was found on the north side of the track, about thirty or thirty-five feet from the public road-crossing, and about six feet inside the right-of-way, and about six or seven feet from the north rail. The cattle guard was torn down. I examined the public crossing there. I found on the crossing hair and blood which I presume were the mule's."
It was shown that the railway track, running east and west, was straight for a long distance and that the operatives of the trains had an open view of the crossing. The plaintiff also testified as follows: "I am where I have occasion to observe the trains that run over the railroad east and west. They have a great many freight and passenger trains running day and night. Numerous trains run west. At that time there were two early passenger trains that ran along there about daylight. One stops at Terrell and one doesn't; they go west." There is no evidence, either direct or circumstantial, tending to show what particular train of the "many passenger and freight trains" killed or probably killed the mule. No one saw the mule at time or before injury, and until found dead.
Touchstone, Wight, Gormley Price, of Dallas, and Terry Porter, of Terrell, for appellant.
Coon Barnes, of Terrell, for appellee.
The appellant requested a peremptory instruction to the jury to return a verdict in its favor, and predicates error upon the refusal to give it. In the circumstances shown in the record it is believed that the appeal is ruled by the cases of Missouri, K. T. Ry. Co. of Texas v. Baker, 99 Tex. 452, 90 S.W. 869, and Gulf, C. S. F. R. Co. v. Anson, 101 Tex. 198, 105 S.W. 989, 990. The above cases have been followed; see Davis v. Wilson (Tex.Civ.App.) 241 S.W. 562. It is reasonably certain in the circumstances shown that the mule was struck with great force on the crossing by some passing train and probably instantly killed. But aside from that conclusion, the following quotation from the case Gulf, C. S. F. R. Co. v. Anson, supra, is quite applicable: "We find nothing in the testimony which tends to show with any degree of certainty which of the two trains caused the injury. * * * It may be conjectured that the ponies were on the track, and that if the engineer had kept a lookout he would have discovered them in time to avoid the injury; or it may be surmised that they were not on the track, but near it, and, being startled by the approach of the train, endeavored to pass in front of and so near to it that it was impossible to have stopped the train in time to avoid the injury. The evidence leads to no definite conclusion upon the point."
The appellee cites the case of International-Great Northern R. Co. v. McGinty (Tex.Civ.App.) 293 S.W. 302, 303, and the rule of evidence there applied. In that case it was shown by the evidence of the witness Solomon Gray that he found the mule on the crossing with his leg broken in a very short time after the passing of a freight train and that the freight train when in "about 100 feet from crossing it blew the whistle twice." According to further evidence of Solomon Gray, he was "about 200 yards from crossing when train passed me," and he "went onto the crossing" and "found mule there with leg broken." The negligence of the defendant and its proximate causal connection with the injury may be reasonably inferred from such affirmative circumstances, and therefore the ruling in that case in no wise modifies the general doctrine that negligence will not be presumed, and the plaintiff must produce sufficient proof to sustain a prima facie case before the defendant must explain or risk an adverse verdict. Quoting from Texas P. R. Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049, 1052, as pertaining to negligence, "a defendant cannot be called on to produce evidence where the plaintiff has failed to bring sufficient proof to prima facie sustain his cause." We think, as before stated, that the cases mentioned above conclusively rule the present appeal, and that the peremptory instruction ought to have been given.
The judgment is reversed, and judgment here rendered for the appellant, with all costs.