The motion for rehearing in this case is based on the proposition that this court has not correctly found the facts as shown by the record, and it is insisted that the entire case of the appellees being upon documentary evidence alone, and that evidence having been considered by the appellate courts in the cases of Corona v. The Galveston, Harrisburg San Antonio Railway Company, 17 Southwestern Reporter, 384, and this case on a former appeal, therefore this court should put the same construction upon the facts in the record before it that other courts did upon records of whose contents we can have but slight knowledge. In the first place, the whole of the testimony of appellees is not paper evidence, but the evidence of officers and employes of appellant show that the telegrams were obscure.
Division Superintendent R.H. Innes says that the telegrams should have read, "Train number 1 will pass train number 2 at _____ Station," and a like order would be sent to train number 2 to pass number 1 at _____ Station; and if one train should arrive before the other, it would not leave the station before the other arrived, without further orders. *Page 618 Instead of such a telegram being sent, the work train was ordered to remain at work until 11:30 a.m., regardless of number 80, the train with which it collided, and the freight train number 80 is, in effect, instructed to pass Devil's River at 11:30 a.m.; and as both trains had the right of way at the same time, and the problem of causing two trains going in opposite directions on a single track to pass each other is one that has never been satisfactorily solved by any known rules of physics, there was a collision, and consequent damage. Again, Innes says, "The work train, under the construction I give its order, had the right to be on the track, as against freight train number 80, up to 11:30 a.m. at any point between Del Rio and Feely Station, and if it had been anywhere east of Devil's River before 11:30, it would necessarily have collided with freight train which had been ordered to Devil's River before 11:30; the time orders in evidence gave the right of the track to both trains at the same time between Devil's River and Del Rio up to 11:30."
The witness J.H. Douglas, train dispatcher (when he testified) of appellant, says: "The order to the work train and the one to the freight train mean just what they say; and the work train was supposed to be at work at the time that it acted on the order, and not lay up on a side track, and the order given to the work train means just what it said, to work until 11:30." This same witness was asked if the following order to the work train would not have been plainer, "Keep clear of number 80 between Devil's River Station and Feely after 11:30 a.m.," and he answered, "No, because such an order would have prevented the work train from working after 11:30, and would have compelled the work train to have been off the track between those points at 11:30." This is exactly what counsel for appellant contends that the order to the work train did require; but the officers of appellant do not seem to support them in their contention, but support the findings of fact of this court, that "The accident arose from the conflict of orders given by the division superintendent. The order to the work train required it to remain at place of work until 11:30 a.m., and then it was necessary to seek the nearest siding, which was Devil's River Station. That Van Vleck had sent dispatches to the conductors and engineers of the work train and freight train, which gave them both the right of way on a single track at time of collision."
Outside of the construction placed upon the order to the work train, we think that no other reasonable construction can be placed upon the order than that of the plain words themselves, "work until 11:30 a.m., regardless of number 80." There is nothing enigmatical in that sentence, and however its meaning may have been obscured by oracular interpretation of it on a former appeal of this case and in the Corona case, it comes before us in all its simplicity, copiously explained and elucidated by *Page 619 experts, who know what construction is to be put upon plain English language by employes of the railroad company. The work train conductor and engineer, as they should have done, obeyed the command of their superior officer; the collision was the result, and the life of young Arispe was lost.
But appellant insists that the Supreme Court has held the evidence in this case insufficient to sustain a verdict, and the question is res adjudicata. The Supreme Court has never passed upon the testimony in this record, and this court must necessarily be the judge of the sufficiency of the facts to support the judgment as presented by the record. This would be the case even if the case had been presented to this court before, and reversed because the facts were insufficient. This is self-evident.
There is no other objection urged or other reason given for the request for a rehearing than is herein discussed. The motion for rehearing is overruled.
Motion overruled.
ON MOTION TO AMEND CONCLUSIONS OF FACT.