238 S.W. 701


PAYNE, Federal Agent,
v.
BANNON.


(No. 8626.)


Court of Civil Appeals of Texas. Dallas.
March 4, 1922.


Page 702

Appeal from District Court, Freestone County; A. M. Blackmon, Judge.

Action by L. P. Bannon against John Barton Payne, as Federal Agent. Judgment 
for plaintiff, and defendant appeals. Reversed and remanded.

Boyd, Bell & Smith, of Teague, and Thompson, Barwise, Wharton & Hiner and 
F. B. Walker, all of Fort Worth, for appellant.

Williford & Geppert, of Teague, for appellee.

VAUGHAN, J.

This is the second appeal in this case. For opinion on former appeal, see 
Hines, Director General of Railroads, et al. v. Bannon (Tex. Civ. App.) 221 S. 
W. 684.

This is an appeal from a verdict and judgment in the sum of $2,500 rendered in 
favor of appellee on the 9th day of December, 1920, as damages for personal 
injuries claimed to have been sustained by appellee through negligence on the
part of appellant, his servants and employees, on or about the 21st day of 
November, 1918.

Appellee, by his second amended original petition, bases his right to recover 
on the following alleged acts of negligence:

        "That while engaged in carrying out the instructions of one Ray Hearne,
        and while attempting to raise a portable brace connected with said dirt
        spreader to an angle of 45 degrees, that it became the duty of said Ray 
        Hearne, prior to the time of turning on the air to raise the wing of 
        said dirt spreader, to see that no one was raising said portable brace
        and that no one was close to said brace. That it was customary for the
        one who had charge of said dirt spreader not to turn the air on for the
        purpose of raising the brace until every one was out of danger, and 
        that the said Ray Hearne knew, or should have known, that plaintiff 
        was in a place of danger, but that he turned the air on with a violent
        jerk, which caused the brace to descend in a violent manner, causing 
        the brace to slip and injure appellee's hand.

        "That it was the duty of the said Ray Hearne to give warning to 
        plaintiff that he was going to turn air on, and that it was customary 
        to give such warning in order that any one in close proximity to said
        brace or wing might be given an opportunity to protect himself, but 
        that the said Ray Hearne refused to give plaintiff any warning that he 
        was going to turn the air on, and that the said Ray Hearne knew, or
        could have known, that the plaintiff was in a position of danger and 
        that turning the air on without giving warning would likely cause 
        plaintiff injury."

Appellant answered on the merits as follows: General denial; pleading 
specially that at the time appellee was injured he and appellant were engaged 
in interstate commerce and that by reason thereof the case was one to be 
determined by the Federal Employers' Liability Act and amendments thereto 
(U. S. Comp. St. §§ 8657-8665); that if appellee received any injuries as 
alleged, that he assumed the risk thereof under the said Employers' Liability
Act and the amendments thereto, and that at the time appellee was injured he
had his hand at an improper place and at a place he was not required to

Page 703

have it in the discharge of his duties, and that the appellee knew thereof and
knew the danger, and, as a result thereof, he assumed the risk of any injuries
sustained to his hand. Also, that appellee was guilty of contributory 
negligence, which was the sole, direct, and proximate cause of his injuries 
and, therefore, under the Employers' Liability Act and the amendments thereto,
he could not recover any sum; and, in the alternative, that if appellant was
mistaken as to the appellee's negligence being the sole, direct, and proximate
cause, then such negligence was a concurring cause, and that if it should be 
found that appellant was liable and that appellee had been injured, that then 
his damages should be diminished in proportion to his negligence as provided
for in the Federal Employers' Liability Act; and that appellee was guilty of 
contributory negligence in having his hand at an improper place at the time he 
was injured.

It was admitted that at the time of the injury the parties were engaged in 
interstate commerce. Appellee was injured while in the performance of his 
duties under his employment assisting in the operation of a machine used to 
spread dirt upon the roadbed of the Trinity & Brazos Valley Railway Company. 
The spreader was located upon and attached to a flat car and had parts referred
to in the pleadings and evidence as "wings," which extended from the car to 
the track by which the dirt was spread. The parts so used for spreading the 
dirt were lowered and raised while in use by means of a steel cable; the 
motive power being compressed air contained in a drum upon the car. There was 
a portable brace or arm attached to the floor of the car. When not in use, 
this lay upon the floor. When it was desired to operate the spreader, this 
brace would be raised and would extend outward from its base at an angle of 
about 45 degrees. The cable was attached to the part of the machine by which 
the dirt was spread and passed thence through the slot at the outer end of the
brace, thence to pulleys upon a superstructure built upon the car, and thence 
to the motive power operated by the compressed air in the drum. In raising and
lowering the part of the machine by which the dirt was spread, it was necessary
that the portable brace or arm be raised and placed approximately at an angle 
of 45 degrees; otherwise, when the motive power was applied the brace would 
raise upward or suddenly descend. While operating the machine it was necessary 
to raise the "spreader" and, immediately preceding the accident, the brace had
fallen. Appellee was assisting is replacing the brace in an upright position at
an angle of 45 degrees, and, while so engaged, the air was applied by the 
operator and the brace suddenly, swiftly, and with great force descended, 
striking appellee's left hand, crushing and mangling same, as shown by the 
testimony of appellee.

Paragraph 8 of the court's instructions is questioned by first assignment of 
error as being on the weight of the evidence, in that it assumed that Ray 
Hearne did not give any notice or warning that he was going to turn the air on,
same being an issuable fact; and by the third assignment said paragraph is 
further challenged for the reason that same assumes and instructs the jury to
the effect that there was an absolute duty on the part of said Ray Hearne to 
give notice or warning that the air would be turned on and, therefore, was a
charge on the weight of the evidence, it assuming an issuable fact.

]Said paragraph 8 is as follows:

        "Now, bearing in mind all the foregoing instructions, you are 
        instructed that if you find and believe from a preponderance of the 
        testimony in this case that the plaintiff, L. P. Bannon, while acting 
        in the scope of his employment with the defendant, sustained injuries; 
        and that such injuries were occasioned by the act of one Ray Hearne,
        who was then operating the air drum upon a dirt spreader, of the 
        defendant in turning on the air in order to raise the wing of said 
        dirt spreader, without notice or warning to the plaintiff that he was
        about so to do; and if you further believe from a preponderance of the
        testimony that this act upon the part of the said Ray Hearne 
        constituted `negligence,' as that term has heretofore been explained 
        to you; and that such negligence was the direct and proximate cause of 
        plaintiff's injury, if any—then you are instructed to find for the
        plaintiff, and assess his damages in the manner hereinafter instructed."
       

The first assignment is directed to the following language of said paragraph:

        "And that such injuries were occasioned by the act of one Ray Hearne, 
        who was then operating the air drum upon the dirt spreader of the 
        defendant, in turning on the air in order to raise the wing of said 
        dirt spreader without notice or warning to the plaintiff that he was 
        about so to do."

Tested by the following decisions: St. Louis & S. W. Ry. Co. of Tex. v. Smith 
(Tex. Civ. App.) 63 S. W. 1064; Texas Central Ry. Co. v. Waldie (Tex. Civ. 
App.) 101 S. W. 517; Texas Midland Ry. Co. v. Booth, 35 Tex. Civ. App. 322, 80 
S. W. 121; and Stooksbury et al. v. Swan et al., 85 Tex. 563-567, 22 S. W. 963
—said paragraph is subject to the objection in that it assumed that Ray Hearne
turned the air on without notice or warning to the plaintiff that he was going 
to do so. This was a controverted issue, both by the pleadings and the 
evidence.

It is true the evidence in behalf of appellant supporting his theory of the 
issue is rather meager, yet, being sufficient to require the submission of 
such issue to the determination of the jury, it was error for the trial court 
to assume that such notice or warning

Page 704

was not given before turning the air on. This, being one of the vital issues, 
should have been submitted by appropriate instructions to the jury 
notwithstanding the apparent weak, probative effect of the evidence supporting
appellant's contentions in reference thereto.

Third assignment is also addressed to that portion of said paragraph 8 above 
quoted on the ground that it assumes that it was Ray Hearne's duty to give 
notice or warning to appellee that he was going to turn the air on, when the 
same is an issuable fact, in that the evidence in the case did not disclose as
a matter of law that it was the duty of said Hearne to give such notice or 
warning; there being at least a conflict in the evidence on said point and, 
therefore, on the weight of the evidence.

In the light of the following evidence, we must hold that the evidence in the 
case does not disclose as a matter of law that it was the duty of said Ray 
Hearne to give such notice or warning, to wit:

        "Under the usual custom and in the course of our dealings some one 
        would tell him (Hearne) we were ready, some one would tell him, `All
        right.' That would mean for every one to get out of the way and for 
        him to raise the wings. The men that have these braces give that 
        notice. In answer to your question whether or not it was the further 
        duty of Ray Hearne to see that he (appellee) was not there before he
        turned on the air, I will answer that it was their duty to get out of
        the way."

Said Ray Hearne testified on direct examination as follows:

        "At the proper time to turn on the air I am given a signal by some one,
        the man below on the ground. * * * I am sure they gave me a signal that 
        it was ready to be turned on, or I would not have raised it. I would 
        not have turned it on if there had not been some warning to me telling
        me to turn it on."

On cross-examination he further testified:

        "I cannot remember who gave me notice, but am sure some one did, 
        because I never would have touched those valves."

By reason of the following authorities, said assignment must be sustained, 
there being at least a conflict in the evidence on said issue. Therefore, said 
instruction in assuming that it was the duty of Ray Hearne to give such notice 
or warning was a charge on the weight of the evidence. C., R. I. & G. Ry. Co.
v. De Bord, 62 Tex. Civ. App. 302, 132 S. W. 845; Harwell v. Southern 
Furniture Co. (Tex. Civ. App.) 75 S. W. 52; S. A. & A. P. Ry. Co. v. Waller
(Tex. Civ. App.) 62 S. W. 554; G., H. & S. A. Ry. Co. v. J. K. Davidson, 61 
Tex. 204.

Second assignment complains of the following portion of paragraph 9 of the 
court's instructions:

        "And that such injuries were occasioned solely by the act of one Ray 
        Hearne, who was then operating the air drum upon a dirt spreader of 
        defendant, in turning on the air in order to raise the wing of said 
        dirt spreader before seeing and ascertaining that the plaintiff was in
        a position of safety"

—in that same assumes as a fact that Ray Hearne did turn the air on before
ascertaining whether appellee was in a position of safety, and thereby 
constituted a charge on the weight of the evidence; said issue being a disputed 
fact. This assignment presents in effect the same issue raised by first 
assignment of error. This was a disputed fact, as must be apparent from the 
evidence above quoted and the additional testimony of the witness Collett, to 
wit:

        "At the time Mr. Bannon was hurt, he was right close to the wing on the
        outside and on the ground. * * * As to what he was doing, he was just 
        standing there; do not know what he was doing with his right hand; I 
        did not see him doing anything"—which required the submission of same 
        by appropriate instructions to the jury.

Said paragraph 9 failed in this respect to comply with the standard exacted by 
the following authorities; therefore, we must sustain said assignment. (See 
authorities cited under discussion of first assignment of error.)

Fourth assignment is addressed to paragraph 11 of the court's instructions for
the reason that it is therein assumed that it was the duty of Ray Hearne and of
appellant to see that appellee was out of a position of danger before Hearne
applied the air. Being a controverted fact, it was error to make such 
assumption; same being on the weight of the evidence. The language of said 
paragraph supposed to contain the objectionable feature, to wit, "or that the 
plaintiff knew, or might by the exercise of ordinary care have known, that the
said Ray Hearne would turn on the air and start the machinery, without first 
seeing and knowing that plaintiff was out of a position of danger, and so 
knowing or being in such position as he could and should under the 
circumstances by the exercise of ordinary care, have known that he would do 
so," did not assume that it was the duty of Ray Hearne to see that appellee 
was in a place of safety before turning on the air, but clearly submitted to 
the jury the issue of assumed risk based upon the proposition that although 
the jury should believe that appellee sustained the injuries alleged and that 
same were due to the failure of one Ray Hearne before applying the air in
order to raise the wing of the dirt spreader to see that appellee was out of a 
position of danger, and should further believe that such failure constituted 
negligence, yet, if the jury should further find from the evidence

Page 705

that the act of the said Ray Hearne in turning on the air and starting the 
machinery without first seeing and knowing that appellee was out of a position
of danger was an occurrence or risk ordinarily incident to the service in which
the appellee was then engaged, he would in law be deemed to have assumed the 
risk, and, in such event, the jury should have found for appellant. This 
assignment is overruled.

Fifth assignment is based on the refusal to give in charge to the jury 
appellant's special requested instruction No. 2, to the effect that unless the 
jury found and believed from the evidence that an ordinarily prudent person, 
situated as was Ray Hearne at the time and place in question, could have 
reasonably foreseen and anticipated that injury was likely to ensue from the 
negligence alleged in appellee's petition, and that their verdict should be for
the appellant even though they believed and found from the evidence that 
appellant was guilty of negligence and that appellee sustained the injuries as 
alleged.

The trial court properly defined the legal significance of the terms 
"negligence," and "proximate cause," as used in his instructions, and, as the 
evidence disclosed that Ray Hearne was in charge of the operation of a known 
dangerous piece of machinery and knew that appellee and other employees in the 
discharge of their respective duties in assisting in the operation of same 
would necessarily be brought in close proximity with said machinery while in
operation, therefore the danger necessarily attending the operation of said 
machinery would be apparent to an ordinarily prudent person operating said 
machine under the same or similar circumstances as same was being operated by 
said Hearne when appellee received his injuries. Therefore, in view of the 
above instructions covering negligence and proximate cause, it was not error 
for the court to refuse appellant's charge requesting the submission of the 
doctrine commonly referred to as "foreseeableness." There was reason to expect
it. Ray Hearne, charged with the wrongful act, had knowledge that such a state
of things existed in the operation of said machine as would render the damage 
probable. Not that the particular injury would happen to appellee, but that in 
the operation of said machine the failure to give warning before applying the 
air by which the attachments referred to as "wings" would be put in motion 
would likely result in inflicting injury upon an employee similarly situated
assisting in the operation of said machine.

The evidence clearly established an unbroken connection between the alleged 
acts of negligence constituting the wrongful act and the injury, and that the
active cause which produced the injury was not independent of the negligence of
the defendant or disconnected from it. In other words, that there was no 
intervening cause. Seale v. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602; T. & P. Ry.
Co. v. Bigham, 90 Tex. 223, 38 S. W. 162.

Sixth assignment challenges paragraph 2 of the court's instructions defining 
"proximate cause," on the ground that he should have further instructed the 
jury that the injury sustained by appellee, in order to be the proximate result
of the negligence charged, must, in view of all the facts and circumstances at
the time, have been reasonably foreseen as likely to ensue from the alleged
negligence, if any. Our discussion and disposition of the fifth assignment 
applies with equal force to this assignment. We therefore overrule same.

Seventh assignment is based on the refusal of the court to give appellant's 
requested instruction No. 15 presenting the defense of contributory negligence.
Paragraph 12 of the court's general instructions to the jury presents 
affirmatively this theory of the case in a manner acceptable to the 
requirements of the law although not couched in the language of said requested
instruction, and especially it was not error to refuse same as paragraphs 8 and 
9 required the jury to find and believe from a preponderance of the testimony, 
not only that appellee sustained injuries as alleged, but that such injuries 
were occasioned solely by the act of one Ray Hearne in turning on the air in 
order to raise the wing of said dirt spreader before seeing and ascertaining 
that appellee was in a position of safety, and that such act on the part of 
said Ray Hearne constituted negligence, and that such negligence was the direct
and proximate cause of appellee's injuries, before they could find in favor of 
appellee.

Furthermore, it may be observed that said requested charge did not properly 
present the law applicable to contributory negligence, in that same directed 
the jury to return a verdict for appellant in the event they should believe 
from the evidence appellee was guilty of the acts of negligence therein 
referred to, when, under the law governing contributory negligence, same could 
only be used to reduce the amount of the damages appellee would be entitled to
recover but for such contributory negligence Said instructions could only be 
given on the theory that the injuries sustained by appellee were the result of
his deliberate act, amounting to self-inflicted injuries, for the purpose of 
fraudulently extracting from appellant a sum of money as damages. Appellant's 
rights are not only safeguarded in this respect by paragraphs 8 and 9 of the
general instructions, but, in addition thereto, by paragraph 14, wherein the 
jury were instructed:

        "Unless you find and believe from a preponderance of the evidence in 
        this case that the defendant was guilty of negligence in one or both of
        the ways alleged in plaintiff's petition,

Page 706

and that such negligence was the direct and proximate cause of plaintiff's 
injuries, if any, you cannot find for the plaintiff in any sum, and your 
verdict in such event should be for the defendant."

We therefore overrule said assignment.

Eighth assignment is based on the court's refusal to give appellant's requested
instruction No. 13, to the effect that in the event they found and believed 
from the evidence that appellee at the time and place in question knew that the
arm or brace was liable to fall when the air was turned on, and if they further
believed and found from the evidence that the appellee knew the danger, if any,
of said brace or arm falling when the air was turned on, and if they further 
believed and found from the evidence that the appellee with such knowledge 
continued to keep his hand, if he did, at the place it was at the time and just
prior to the time he was injured, then, in that event, they would return a 
verdict for appellant. The reason herein stated for overruling the seventh 
assignment applies with equal force to this assignment, and the same is 
therefore overruled.

We have carefully considered the ninth, eleventh, and twelfth assignments and, 
while we do not believe that any of them present material error, yet, in view 
of the several decisions intimating that similar charges should have been given,
we suggest that in the interest of reaching a conclusion of the litigation it
might be well to give same on another trial of the cause. However, we overrule 
said assignments as not presenting material error in the refusal of the court 
to submit same to the jury.

Tenth assignment is based on failure of the court to conclude paragraph 9 of
his main instructions so as to direct the jury to other portions of the court's
instructions presenting appellant's defense, in that no reference was made in 
said paragraph 9 to the issues of assumed risk or contributory negligence, 
leaving the jury to infer that, regardless of whether or not the evidence 
established assumed risk or contributory negligence, under said paragraph 9 
appellee would be entitled to a verdict. While we believe and would hold as an
original proposition that this assignment is hypercritical and without merit,
yet, in deference to authorities upholding same, we sustain it and suggest that
said paragraph 9 should have been concluded with the expression, "unless you 
shall find for the defendant under some other instructions hereinafter given 
you," or some similar phrase.

In this connection we think it opportune and not at all out of place to make 
the following observation in reference to the growing tendency to seriously 
impair the right of trial by jury by highly technical, logically refined 
decisions holding instructions by trial judges to be on the weight of evidence,
when only a mind highly skilled in legal technicalities and refined logical 
deduction could discover in such instructions the assumption of the existence 
or nonexistence of any particular state of facts or that it assumed any 
particular issue was established or disproved.

It occurs to us that in view of the qualifications of jurors required by law,
courts can reasonably assume that citizens selected and impaneled in conformity
therewith at least possess such qualifications and, therefore, average 
intelligence and ordinary judgment capable of comprehending the meaning and 
effect to be given plain English, and should not assume that citizens thus 
selected do not possess intelligence and judgment supposed to be common to a 
vast majority of our citizenship at least sufficient to permit trial courts to 
direct the mind of jurors to the issues presented for their determination 
without the danger of running counter to the rule of law requiring instructions
to be so framed as to submit all contested questions of fact only to the 
decision of the jury. Certainly a reasonable rule would be, unless the language 
employed is within its own terms clearly a charge or comment on the weight of 
the evidence, the objection on this ground should not be aided by speculation, 
for where there is no reasonable probability that the minds of persons of 
ordinary intelligence would differ as to the meaning and effect of language 
used not being on the weight of the evidence, there is no reason why, if 
speculation is to be indulged in, same should not be in favor of the ordinary 
intelligence of the jury in understanding and properly applying the 
instructions given for their guidance.

If we were at liberty to apply the above rule of reason, we would overrule all
of the assignments heretofore discussed. This we have refrained from doing 
because of the authorities holding contrary thereto, appreciating that it 
perhaps would be futile for us in this instance to run counter to same.

Thirteenth and fourteenth assignments present practically the same question, 
which is the most serious developed by this appeal. Appellee on cross-
examination testified as follows:

        "Yes, sir; in March, 1919, I quit working for the company. I will say
        I quit work because I was requested to do so. Yes, sir; it is a fact 
        that I was carrying `dead men' on my pay roll and I got some of the 
        money. It is not true that I was not discharged until I was indicted.
        I was indicted, but it was after I was discharged."

The court by paragraph 15 of his instructions to the jury placed the following
limitation on the above testimony:

Page 707

        "You will consider this testimony only in passing upon the question of
        the plaintiff's ability to labor and earn money."

Appellant duly excepted to the limitation placed by said instruction on the 
effect to be given said testimony on the ground that said evidence was 
admissible for all purposes, including the credibility of appellee as a 
witness, and for the purpose of showing his bias and prejudice against 
appellant. This evidence was not admissible for the purpose to which the 
consideration of same by the jury was limited, but was clearly admissible on a
vital right accorded appellant under the law, to wit, to show the bias of 
appellee whose testimony was before the jury as the sole and exclusive judges 
of the credibility of the witnesses and the weight to be given their testimony, 
and, notwithstanding the natural bias and prejudice litigants are supposed to 
have in all legal controversies, appellant had the right to introduce and to 
have the jury consider the above testimony in determining the weight to be 
given appellee's testimony and his credibility, especially as bearing upon his
motives, inclination, prejudice, and bias as a witness. H. E. & W. T. Ry. Co.
v. Wilson, 37 Tex. Civ. App. 405, 84 S. W. 274; M. K. & T. Ry. Co. v. Burk 
(Tex. Civ. App.) 146 S. W. 600; M. K. & T. Ry. Co. v. St. Clair (Tex. Civ. 
App.) 51 S. W. 666; T. & P. Ry. Co. v. Brown, 78 Tex. 397, 14 S. W. 1034; 
H. E. & W. T. Ry. Co. v. McCarty, 40 Tex. Civ. App. 364, 89 S. W. 805; 
Cox v. M. K. & T. Ry. Co., 20 Tex. Civ. App. 250, 48 S. W. 745.

Said assignments are therefore sustained.

In view of the errors above pointed out, the judgment of the trial court is
reversed and remanded for further proceedings in accordance with this opinion.

 Reversed and remanded.