* Writ of error granted December 5, 1923. *Page 449 This suit was instituted by Joe Lavine and wife, Hannah Lavine, against the Houston East West Texas Railway Company and the Texas New Orleans Railroad Company, to recover damages alleged to have been suffered by them by reason of the death of their minor son, Herman Lavine.
The plaintiffs alleged: That on or about the 8th day of July, 1921, their said son, a boy of 14 years of age, while attempting to cross over the track of the Texas New Orleans Railroad Company, where the same is crossed by the Wallisville public road and Cushing street, was struck and killed by one of the defendant's trains. That the crossing in question was a public crossing, much used, and dangerous. That the defendants were negligent in the following particulars: First, in failing to exercise ordinary care to see that the gates erected at said crossing were in proper condition and would close when trains were approaching and passing said crossing; second, in failing to sound the whistle and ring the bell of the engine, as the law requires; third, in not placing a watchman at said crossing: fourth, in running their train, which struck Herman Lavine, at an excessive rate of speed. They alleged that these acts of negligence, concurring with others, were the proximate cause of the death of the deceased.
The defendants answered by general demurrer, general denial, and by a plea of contributory negligence on the part of the deceased, and specially alleged, among other things, that the deceased was not struck at the crossing, as alleged by plaintiffs, but that he was a trespasser upon defendants' premises and was struck and killed at another place than said crossing.
The cause was submitted to a jury on special issues in answer to which the jury found:
(1) That the deceased was struck and killed at the point of the intersection of Cushing street and the railway track, as alleged by plaintiffs.
(2) That the defendants did maintain safety gates at said crossing.
(3) That the defendants did not exercise ordinary care to see that said safety gates were closed as the train which struck deceased approached said crossing, and that such failure was the approximate cause of the death of the deceased.
(4) That the bell of the engine, which was propelling the train which ran over and killed the deceased, was not ringing as the train approached the crossing in question at the time of the accident.
(5) That the deceased, at the time, or before the time, he was struck and killed, did nothing to ascertain the approach of the train which struck him.
(6) That the failure to ring the bell was an act of negligence on the part of the employés of defendants, and that such failure was the proximate cause of said accident.
(7) That had the deceased, Herman Lavine, exercised ordinary care at or before he went upon the railway track he would have heard the approach of the train which struck him.
(8) That the damage suffered by the *Page 450 plaintiffs by reason of the death of their son was $2,000.
Judgment was rendered in favor of plaintiffs against defendants, jointly and severally, for the sum of $2,000, and from such judgment both defendants have appealed.
Assigning reasons for reversal of the judgment rendered, appellants, by their propositions 1, 4, and 5, substantially contend that it is shown by the great weight and preponderance of the evidence, as well as by the physical facts shown, that the deceased was not struck and killed at the Cushing street crossing, as alleged by the plaintiffs, but that he was run over and killed at a point upon the premises of the defendants upon which he was trespassing, some 2,000 feet west of said Cushing street crossing, and that it was further shown by said great weight and preponderance of the evidence and physical facts that appellants were not guilty of the negligence alleged by the plaintiffs, and therefore judgment should have been rendered for appellants. And by propositions 2 and 3 they contend, substantially that, if they are mistaken in the contention first presented, and in the event it is assumed that the testimony of Lewis Thompson, the only person who testified to seeing the collision of the train with the deceased, is true, then and in these circumstances it is shown by the undisputed evidence and the great weight and preponderance of the evidence that the deceased was guilty of an act of negligence contributing to his death in going upon the railway track in front of the train which struck and killed him, without looking or listening for the approach of said train, as was shown by the testimony of the witness Thompson and as found by the jury.
After a most careful examination and consideration of the statement of facts, we have reached the conclusion that the finding of the jury that the deceased was struck and killed at the Cushing street crossing is so against the great weight and preponderance of the evidence as to be manifestly wrong. While it is the duty of appellate courts to sustain the findings of trial court or jury founded upon sufficient credible testimony, they are not required to sustain findings based upon testimony which is irreconcilable or which is entirely out of harmony with human observation, reason, and experience. In other words, if the circumstances, conditions, and physical facts are such that the testimony cannot be true upon any reasonable hypothesis, the verdict of the jury and judgment rendered, based upon such testimony, should be by the appellate court set aside.
The important inquiry then is, Was Herman Lavine struck and killed at the Cushing street crossing, as alleged by the plaintiff, or was he so struck and killed some 2,200 feet west of said crossing, and upon the inclosed premises of the defendants? This inquiry is important in that, if the deceased was killed while trespassing upon the inclosed premises of the defendants, they were under no duty to keep a lookout for his safety, unless they had reason to anticipate his presence upon said premises, and under such circumstances plaintiffs could not recover, there being no allegation of discovered peril. But it was the duty of defendants to keep a lookout for persons who might be about to cross its track at Cushing street crossing, to ring the bell and sound the whistle of their engine as the train approached said crossing, and generally to use such care to prevent the injury complained of as a person of ordinary care and prudence would have exercised under like or similar circumstances, and hence, if it be shown that the accident occurred at said public crossing and that the defendants failed to keep such lookout or to perform some one or more of the other duties mentioned, and that such failure was the proximate cause of the accident, the judgment for the plaintiffs should not be disturbed.
This brings us, then, to the further pertinent inquiries: First, was the testimony of the witness, Lewis Thompson, and the testimony of plaintiffs Joe and Hannah Lavine, relative to the point of the accident, upon which the jury found that the deceased was struck and killed at the Cushing street crossing, so out of harmony with human observations, reason, and the common experience of all men, and so irreconcilable with the undisputed facts, as to render it insufficient to support such finding of the jury; it being shown that the engineer and fireman on the engine which struck the deceased testified that they were keeping a lookout, as they crossed Cushing street crossing, and that their engine did not strike any one at said crossing; and it being shown that other witnesses had testified to certain facts, which, if true, would tend to show that the deceased was not struck at said crossing, but that he was run over and killed 2,200 feet west thereof; and it being further shown, by the undisputed evidence, that the body of the deceased was found lying on the railway track of defendant some 2,200 feet or more west of said crossing on the premises of defendant; that one of his arms was lying across one of the rails of the track and was so crushed as to be held to the body by the leaders or ligaments only, and that one of his legs was lying across the opposite rail and was so crushed as to be held to the body by ligaments only; that his scalp was split, and that his cap was found close to where his body was found. In other words, is it not true that the great weight and preponderance of the evidence is so against the finding of the jury that the deceased was struck at Cushing street crossing as to *Page 451 render such finding manifestly wrong? We think so.
The undisputed evidence shows that the railroad track upon which the accident occurred ran practically east and west; that Cushing street crossing lies between the Englewood railway yards and the creosote plant of defendants: that the yards were east and the creosote plant west of said crossing; that the main track and four spur or side tracks passed over said crossing; that the body was found in a few minutes after the death of the deceased on the main line track of defendants' 2,200 feet west of said crossing, in the condition as hereinbefore described; and that the cap worn by deceased was found close to where the body was found.
The effect of the testimony of those who removed the body to the undertaker and who undressed it was that no parts or pieces of the body were missing.
The engineer and fireman in charge of the train in question testified that they knew no one was struck at said crossing by their engine.
As against the testimony of the witnesses mentioned and the undisputed physical facts, appellees' witness Lewis Thompson testified that, about 9 o'clock p. m. on the night of the accident, he was traveling on Cushing street going north: that when he got near the railway track he saw the deceased, who was about 10 or 15 feet in front of him and about 40 feet from the track, and who was also going north; that the deceased did nothing to discover the approaching train, but walked upon the railway track in front of the approaching train without looking or listening; that he saw the engine strike and kill the deceased; that the train passed said crossing at a rate of speed of 25 miles per hour; that as soon as the train passed he went on home without looking to see whether or not the deceased was killed or injured, as he did not want to be bothered with him; that he did not tell his wife that any such accident had occurred, nor did he tell any one that he had seen the accidentuntil about a week thereafter, and that how he came to then tell of seeing it was that he was on a street in the city of Houston and heard Joe Lavine telling about his son being killed, and that he then told Joe that he had seen the accident.
Appellee Joe Lavine testified that his son was killed on Wednesday night, and that he and his wife went down to the Cushing street crossing about 1 o'clock on Friday thereafter; that the first time he knew hisson was killed on the crossing was when Lewis Thompson told him and thatafter Lewis Thompson told him that his son was killed on the crossing, heand his wife went down to the crossing, and that he saw some blood on a sill that supported a trestle west of and near said crossing; that it was human blood; that he knew it was human blood, because if it was animal blood it would be just like any other blood. Testifying further, he said:
"I just thought that was blood. I saw it there. I went down there looking for blood, and I saw it, and I believe it was blood. I was trying to find blood from the place he was killed."
Testifying further, he said that when he found this blood he and his wife went on up the railroad track and found a piece of his son's jumper, a blue jumper; that he knew it was a piece from his son's jumper because his wife had made the jumper at home; that after finding this piece of jumper they went a little further and found a piece of flesh off of his son's ankle laying on the track, and a little further on they found another piece of flesh; that the pieces of flesh they found were pieces of human flesh.
Appellee Hannah Lavine testified, with reference to finding the pieces of flesh, practically as did Joe Lavine.
As before stated the testimony of the witnesses Thompson and Lavine was the only evidence tending to show that the deceased was struck at the crossing.
If it be the theory of appellees that the deceased was caught under the pilot of the engine and dragged 2,200 feet to the point where his body was found, such cannot be sustained, for it was shown that no part of the skin of the body was broken except on the head and on the leg and arm, which were mashed by the wheels of the cars as they passed over them, and it was also shown that the cap of the deceased was found near the place where the body was found. Can any person of ordinary intelligence believe that the body could have been dragged 2,200 feet under this train without dislodging the cap from the head before it reached the point where it was found? Or that the body could have been so dragged without being mutilated ?
Again, if the theory is that deceased was caught on the pilot and his body finally dropped off where it was found, then the testimony of Lavine and wife that they found parts of the body near the crossing is refuted, for if the body was lodged on the pilot it would not have been possible that any part of the body was severed until it was dislodged from the pilot.
Having reached the conclusion that the testimony of the plaintiffs' witnesses is so out of harmony with all human observation, reason, and experience, and contradictory of the undisputed physical facts, we have reached the further conclusion that the finding of the jury, based solely upon said testimony, is so against the great weight and preponderance of the evidence that it should not be permitted to stand.
We cannot agree with the contention *Page 452 of appellants that if the testimony of Lewis Thompson be true that it shows that deceased was guilty of contributory negligence as a matter of law, or that the fifth and seventh answers of the jury to special issues submitted was a finding that he was so guilty. Galveston-Houston Electric Co. v. Patella (Tex.Civ.App.) 222 S.W. 615; S. A. A. P. Ry. Co. v. Votaw (Tex.Civ.App.) 81 S.W. 131.
Having reached the conclusion that the judgment is so against the great weight and preponderance of the evidence as to be manifestly wrong, as hereinbefore expressed, the same is reversed and the cause is remanded.
Reversed and remanded.