The appellant predicates error in submitting as an issuable fact to the jury the two alleged grounds of negligence (1) in causing the train to move upon the appellee after he went in between the cars to make the un-coupling, and (2) in leaving and permitting to remain spikes extending above the tie near the rail. The points relied on for the error are:
"That after the train stopped for Fitch to uncouple the cars the engine did not move until Brakeman Whitley received a signal from Fitch to have the train backed, which signal was given by Fitch after he received his injury, and whatever movement the train made after Fitch went in between the cars was caused by the train settling down or the slack running out of the rear end of the train."
Further:
"The fact that spikes protruded above the top of the ties in the track was a condition in which the track everywhere was frequently found and did not constitute negligence in this particular case, and the plaintiff assumed that risk. The evidence did not show that any spike caused the plaintiff to fall and receive his injury."
The facts and circumstances in evidence were quite sufficient, it is concluded, to make a question for the jury alone to determine as to whether or not the employees in charge of the train caused to be moved and did move the same after the appellee went in between the cars for the purpose of making the un-coupling, without any signal from or notice to him. The evidence conclusively shows that the train came to a stop at Cut Off Junction for the purpose of taking 14 cars out of the train, to be left on a side track for delivery to a connecting carrier for further transportation. The train was stopped at the particular place on the track in response to a signal from the appellee, whose duty it was to give the signal. And the evidence is undisputed that when the train stopped the appellee went in between the cars to make the uncoupling. The operatives of the train each knew the cars were to be uncoupled and switched, and that appellee was to do the uncoupling. And it is further established as a conclusive fact that the appellee's right leg was run over by a wheel of the car after he went in between the cars to make the un-coupling. The fact that the leg was run over and mashed by a wheel of the car can be taken as a physical fact demonstrating beyond all doubt that the train moved while the appellee was between the cars making the uncoupling in the way required to be done. And the car that "in moving west" ran over the leg was the thirtieth car in the train from the engine, headed west, and the fourteenth car from the caboose on the east. At the time the appellee went in between the cars the train, he testifies, "had come to a complete stop," "a full stop." What caused the train or the car to move "west" so as to injure the leg? Looking to the record in that respect it is seen that there is evidence that, when the train, going about six miles an hour, was stopped in the first instance at *Page 270 Cut Off Junction, "the engineer applied the automatic air and stopped the train; automatic air was placed on them." And there is evidence on the part of the engineer showing:
"The train nor the engine was not moved after I stopped it until I got the slack signal. My engine was standing still from the time I got the first stop signal until I got the signal to give slack; the cars were bunched against the train. When the cars are bunched against the engine there is no slack in the train to run out. When the train is in that condition you have to move the train forward and then reverse it to give any slack or get any slack."
And the testimony of the fireman was to the same effect as the evidence given by the engineer. And the plaintiff testified:
"Ordinarily if you just stop the engine the train stops with it, and the cars then usually take the slack up when the engine stops, but of there is automatic air it doesn't. I know the kind of brakes used on the occasion I was hurt. It was automatic air brakes, and automatic air was placed on them. The automatic air takes effect on each car up and down the train and puts the brakes on each car in the train. When the automatic air is applied no slack runs out for the reason that each car is braked by virtue of the automatic air."
And the plaintiff further testified that, after "the engineer applied the automatic air and stopped the train," "then I went down on the side of the box car to uncouple the cars." If, then, according to this evidence, the air brakes were set on the train, and the train was at "a complete stop," and when the automatic brakes are set "there is no slack in the train to run out," and "no slack runs out," the jury would be authorized to find as a fact that "the movement" of the train was not caused by the settling down or the slack running out of the train. And if the appellee did not, as he testifies, go in between the cars until after "the engineer applied the automatic air and stopped the train," and "the train had come to a complete stop," then the jury could find as a fact that, if there had been a settling down of the train after it stopped, it occurred before the appellee went in between the cars, and therefore was not the movement of the car that caused his injury. And neither can it be said that the evidence conclusively shows that, after the appellee went in between the cars, his turning the angle cock on the east car so released the air on that car as to cause it to move and run over his foot. And the evidence further shows that, even if the car had moved by reason of the release of the air in turning the angle cock on that car, it could only have moved "two or three inches forward," which would not have been far enough to have caught and run over the plaintiff's leg, which was at the time "over 15 inches" distant. The undisputed evidence is that the car came "forward" to "the west" far enough not only to reach the appellee's leg, but with force enough to knock him down and to knock his lantern out. And neither can it be conclusively said, we believe, that the car "moved west" and ran over the leg, because whatever movement that car made was solely due to the slack running out of the cars to the rear end of it. It does appear in the appellee's statement to the company, offered in evidence, made shortly after the injury, that "I cut out the air on some of the cars before we reached Cut Off Junction, on account of the air sticking to them." These several cars on which the air had been cut out were located, it would seem, between the caboose and the car that injured appellee. It may be that this condition of the rear 14 cars may have caused movement of the car "west" by reason of slack from the cars behind running up against it, even though, and notwithstanding, the 30 cars ahead of it bunched against the engine did not move from any slack movement. But there is no affirmative or conclusive evidence that there was such slack movement, and the inferences from all the facts and circumstances were for the jury. It is not disputed in the evidence that the engineer moved the train forward "west" four or five feet in response to the slack signal from Head Brakeman Whitley. Whitley testified that the appellee gave him this signal, but appellee denies that he did so. Appellee claims that he gave Whitley the original stop signal, and a violent signal "after I was hurt." Mr. Whitley accounts for the stop signal and the last violent signal to stop, but asserts that the "slack signal" was also given him by appellee before the last violent signal was given. This conflict was for the jury. If Whitley gave an unauthorized signal to the engineer to move the train, it was for the jury to say whether or not he did so, and whether or not there is in all the evidence negligence on Whitley's part.
The next proposition should be, we think, overruled. There is ample evidence for the jury to determine, as in their province, that the protruding spike in the tie was extremely dangerous, and that the spike caught and held the shoe, and in consequence appellee could not remove his foot in time to avoid its being run over by the moving car, and that there was negligence in having the spikes protruding above the top of the ties. Ry. Co. v. Cleland, 50 Tex. Civ. App. 499, 110 S.W. 122; Ry. Co. v. Geron (Tex.Civ.App.) 162 S.W. 471; Ry. Co. v. Ford,56 Tex. Civ. App. 521, 121 S.W. 709. If the act of having the protruding spike in the tie at the place it was is an act from which a jury is authorized to infer negligence, then the appellee did not assume the risk of such special and, as it appears, unforeseen negligence on the part of the appellant. And if the fact that spikes protruded above the ties *Page 271 was an act of negligence (which the jury had the right to determine), then it could not be said that appellee was precluded of recovery, as a matter of law, upon the doctrine of assumed or accepted risk. Therefore assignments of error numbered 3, 4, 7, 10, 11, 19, 20, 21, 22, 23, and 26 should be overruled.
The court submitted separately the three grounds of alleged negligence, and further charged:
"Again, if the jury shall find from a preponderance of the evidence that the angle cock was defective and out of repair on account of the negligence of the servants of the defendants, and that spikes were permitted to protrude above the cross-ties on account of the negligence of the servants of defendants, and shall further believe that, while the plaintiff was making an effort to turn said angle cock, his shoe caught on a protruding spike, and that the combined negligence, if any, on the part of the defendant in permitting the angle cock to become defective and out of repair and in permitting the spike to protrude above the cross-tie was the proximate cause of plaintiff's injury, then you will find for him, unless you find for the defendant under other instructions given you."
The appellants excepted to the charge, and submit as grounds of error the propositions:
"The condition of the angle cock was not the proximate cause of the injury."
"After the court had charged the jury that plaintiff might recover on the train moving without a signal from him, and that he might recover on the ground of the angle cock being defective, then the court erred in telling the jury if they believed the result of the combined defects in the angle cock and spikes was the cause of the injury that the plaintiff could recover. The plaintiff did not plead the combined action had caused his injury, and because from the nature of the evidence the two conditions could not have co-operated in causing the injury, and there is no evidence that they did co-operate."
The condition of the angle cock was, in the evidence, an act of negligence; but such negligence was not, we conclude, in itself alone the proximate cause of the injury. But the question of "proximate cause" as submitted by the court's charge was properly submitted to the jury for decision, we think, when, as here, the injury could correctly be said to be the result of concurring causes. The combined action of the defective angle cock and the protruding spike in the tie and the movement of the train could have co-operated in causing the injury. For it appears that, on account of the rusty and defective condition of the angle cock, and the extra force required to turn it, the appellee had to place his right foot forward on the tie to brace himself to apply the force required to turn the angle cock. And while appellee was pulling on the angle cock the shoe on the foot hung in a protruding spike, and the moving train caught and ran over his leg. The great strength and force required to turn the angle cock caused the shoe on the foot to hang on a spike, so that appellee could not remove his leg in time to avoid its being run over by the car wheel. In another portion of the charge the court had submitted to the jury an approved definition of the term "proximate cause." And therefore there was not, we think, error in giving the last instruction above. And the fact that the negligent condition of the angle cock was not of itself and by itself alone the real producing or proximate cause of the leg's being run over does not, we think, require a reversal of the judgment, in view or rule 62a and its repeated construction, because the evidence did not authorize its submission to the jury in that form as an issue. If the evidence conclusively showed that the angle cock and its condition did not of and by itself alone cause appellee the injury to the leg, then clearly a jury of ordinarily sensible men would not find to the contrary, and the court could not reasonably say that they did so find and found their verdict thereon. And we think that the error complained of did not cause injury or the rendition of an improper judgment. Rule 62a; Ry. Co. v. Shinn (Tex.Civ.App.) 153 S.W. 636; Ry. Co. v. Corley (Tex.Civ.App.) 154 S.W. 621; Wells Fargo Co. v. Benjamin (Tex.Civ.App.) 165 S.W. 120. The case of Tisdale v. Ry. Co. (Tex.Com.App.) 228 S.W. 133, is relied upon as requiring a reversal of this judgment. It is believed that case is not applicable to the very question here made, and further it is believed that the approval of the Supreme Court was not intended to extend to lay down a general rule applicable to every case that it is an error per se requiring reversal of the judgment in submitting to the jury, as done in the instant case, an alleged act of negligence proximately causing the injury, when the evidence in the particular case shows the act to be negligence, but further conclusively shows that such act of negligence was not of and by itself the proximate cause of the injury.
We have considered the assignments pertaining to the special charges, and think there is no error. The court's main charge covered all the issues in the case, and favorably authorized a verdict for appellant upon all issues.
The judgment is affirmed.
On Appellants' Motion for Rehearing. We still think that the angle cock and its condition was not of and by itself alone the proximate cause of the appellee's injury, and that appellee could not legally predicate a recovery on that ground alone. The error, though, we formerly concluded should not operate to reverse the judgment, in view of rule 62a (149 S.W. x). In point of principle and merit the judgment should be affirmed, but, under the authority of the case of Weisner v. Ry. Co. (Tex.Com.App.) 207 S.W. 904, *Page 272 which we are required to follow, the judgment must be reversed, and the cause remanded for another trial, for the error mentioned. From the Weisner Case, supra, it appears that rule 62a does not apply to an erroneous instruction where the case is submitted to the jury on a general charge. In that case the Court of Appeals held that a charge given was erroneous, but was entirely irrelevant to any issue that was raised by either the pleading or the evidence, and consequently a harmless error not injuring the rights of the appellant and not authorizing the reversal of the judgment under rule 62a. The Commission of Appeals reversed that ruling of the Court of Appeals solely upon the ground that the giving of an erroneous charge —
"is calculated to prejudice the plaintiffs and cause the jury to render an improper verdict. It is never possible in such case for any appellate court, where the case is submitted under a general charge, to say upon what ground the jury acted."
The Supreme Court not only approved the judgment in the particular case recommended by the Commission of Appeals, but further decided:
"The case is correctly remanded upon the ground stated by the Commission in its opinion."
Therefore the ruling has approval of the Supreme Court. The opinion can be construed in one way only, which is that of holding that the giving of an erroneous instruction, even though it relates to no issue raised either by the pleading or the evidence, "is calculated to prejudice (the plaintiff) and cause the jury to render an improper verdict." Then, under that holding, the giving of an erroneous charge in any case where the case is submitted to the jury on a general charge requires reversal on the ground that such error is conclusively "presumed," as a matter of law, to reasonably and probably cause the rendition by the jury of an improper verdict, and rule 62a would not operate to prevent a reversal. Upon that case as the authority for so doing, we are now reversing and remanding this case upon the appellants' application for rehearing.
On Appellee's Motion for Rehearing. After a full consideration again, it is believed that the ruling in the Weisner Case, supra, may not have been intended to reach to the extent and be applied as this court has construed it in appellants' motion for rehearing. It is not thought that it was reasonably meant to hold that, three separate issues being submitted to a jury under a general charge, two of them being proper issues to be submitted, and one issue being erroneously submitted, the case would have to be reversed, because it would not be possible for a court to say upon which ground the jury acted. The court doubtless meant to confine the ruling to that case, and not to apply it to a case like the one now being considered. To reach the conclusion that the error in the instant case "amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment," according to rule 62a, we are forced to find that, although three different issues were submitted, the jury's verdict was based upon the fact that the angle cock was the proximate cause of the injury, and that the jury did not find for the plaintiff on any other issue. If the jury found for the plaintiff on any two issues, the fact that a further but erroneous issue was submitted would not amount to a denial of the appellants' rights or cause the rendition of an improper judgment, for the plaintiff would still be entitled to recover on the ones properly submitted and having evidence to support them. There are two grounds here on which the plaintiff was entitled to recover, there being evidence to support them, that were properly submitted; and as to these two grounds the appellants' rights and defenses were in no wise restricted or affected by the third ground or charge in respect to it. Is it to be concluded that the jury found against the plaintiff on the two issues legally submitted, and in his favor on the one issue on which he could not legally recover? The three issues are distinct. It is believed that rule 62a has application. Our former opinion reversing the judgment is therefore set aside, and the judgment is, as in the original opinion, affirmed.
Chief Justice WILLSON is inclined to the opinion that it should not be said that in no view the jury might have taken of the testimony, could the negligent condition of the angle cock have been the proximate cause of the injury. It was a jury question.
The appellee's motion for rehearing is granted, and the judgment is, as originally ordered, affirmed. *Page 273