Suit by appellee for damages for the killing of his jack by negligently running defendant's passenger locomotive over him. Trial by jury. Verdict and judgment for plaintiff for $800, with 6 per cent interest from the 16th day of December, 1893, the date of the injury.
Defendant has appealed.
Opinion. — The statute (R.S., 4245) makes every railroad company liable to the owner for the value of all live stock killed or injured by locomotives and cars of such railroad; but it is provided that if the company fence the road it shall only be liable in cases of injury resulting from the want of ordinary care.
There was testimony tending to show that the company had fenced the road, but that it had got out of repair, was down in several places, and that the animal killed may have come on to the right of way and the track through an open place in the fence. If such was the case it did not devolve on plaintiff to establish negligence of defendant's employes in killing the jack in order to entitle him to recover, but if the road was fenced and in repair at the time, he could only recover in the event of proof of negligence, or the want of ordinary care of the employes of defendant resulting in the injury.
The writer is of opinion that the testimony did not authorize the submission of the case upon the ground of negligence and that there was error in submitting that question to the jury, as was done by the court, and that for this error the judgment of the lower court should be reversed. The members of the court are not agreed upon this point, though we do agree that the judgment should be reversed, but upon different *Page 16 grounds. The testimony was amply sufficient to support the verdict upon the issue that the fence was down in places, or a place, when the jack entered, and therefore that the road was not fenced in the sense of the statute. But it is the opinion of the writer that the testimony did not warrant the submission of the question of negligence on the part of the company's servants, and that for this error the judgment must be reversed.
The only testimony as to the negligence of the defendant's servants, besides the fact that the jack was struck and carried from one hundred to one hundred and fifty yards on the pilot of the engine, is that of the defendant's engineer operating the locomotive. This witness testified as follows:
"I was in December, 1893, locomotive engineer in the employ of defendant, and had been for a number of years. I was engineer on the south-bound passenger train running from Taylor to San Antonio on the afternoon and evening of December 15, 1893. I remember my engine striking and killing a jack about one and one-half miles north of Kyle, on the evening or night of December 15, 1893, on what is known as the "Lock Place." It occurred 8:40 P.M., or that late. I was in my cab at my place looking ahead, when I saw about fifty yards ahead an object on the track. The train was running thirty miles an hour. I immediately applied the air brakes and before the train stopped the engine struck the object. I did not reverse the engine, I did not have time. I did not attempt to do so. It was dark, the headlight was burning. The jack was seven or eight feet from the end of the bridge, and seemed to have his feet down between the ties at the south end of the bridge. A bridge at night under the headlight looks dark, and an object lying on it is not easily seen on that account. The earth between the ties shows up white under the headlight, but the space near the bridge and between the ties, shows up dark. I was attending strictly to my business and turned on immediately the air brakes, when I saw the object. Did all in my power to stop. The pilot struck the jack almost in the center and carried him over one hundred yards, when the train was stopped and the crew got off and threw the body to one side. The brakes on the train were the Washington air brakes and had worked well during the trip and continued to work well to San Antonio, the end of the run."
Cross examined: "I did not reverse the engine when I saw the object, nor did I attempt to do so. The brakes worked well in slowing up upon reaching the station. This was the only time I had occasion during the trip to use them."
This testimony fails to show the negligence necessary to authorize the submission of the question. It shows that the engineer was strictly performing his duty. "A scintilla of evidence or a mere surmise that there may have been negligence on the part of defendant, clearly would *Page 17 not justify the judge in leaving the case to the jury; there must be evidence upon which they might reasonably and properly conclude that there was negligence." The above quoted expression is adopted as the true rule by our Supreme Court in the case of Railway v. Faber, 77 Tex. 155, and the court adds: "This rule is expressly followed in several cases and is sustained by the weight of authority." If plaintiff relied upon this branch of his case — the negligence of defendant's servants in running the locomotive upon and killing the animal — it devolves upon him to prove it, so that it could appear beyond a mere surmise or supposition and so that the jury could reasonably conclude that there was such negligence. Tel. Co. v. Housewright, 5 Texas Civ. App. 1[5 Tex. Civ. App. 1]; Railway v. Arispe, 81 Tex. 517.
We are agreed that we would set the verdict aside upon the ground that the testimony is not sufficient to show negligence. This is a strong, and, it seems to me, an invincible reason why we should also hold that the question of negligence should not have been submitted to the jury. Both in submitting the issue and in acting upon the motion for a new trial the trial judge has the same question to determine. The legal effect of the testimony is the matter to be determined in both cases, and the writer believes the rule should be that if the court is of opinion that a new trial should and would be granted because of the insufficiency of the testimony or its inherent weakness to support a verdict, he should not submit the issue, though it may be well pleaded. It seems to me absurd to require the trial judge to submit an issue which is not sufficiently proved to support a verdict, or that demands a new trial at the hands of the court. The court has the same question to decide at both stages of the proceeding. It is true the jury might refuse an affirmative verdict, but when the court submits the issue they are permitted by the court to find affirmatively on the issue. I do not see what good result can be secured by submitting an issue merely to see how the jury will decide it, if a new trial is to be granted unless they decide against the proposition. I am aware of the fact that the Supreme Court adopted the opinion of a majority of the Commission of Appeals, Judge Fisher dissenting, where a different view was expressed to that held above (Fitzgerald v. Hart, 17 S.W. Rep., 369); but notwithstanding that decision, it seems to me that the judge should not submit an issue to the jury unless the testimony is sufficient to justify a verdict that would be upheld by the court on a motion for a new trial. It may be said that a party has the right to have a jury, when one is called, pass upon his case, but it seems to me to be idle, if not trifling, for the court to submit an issue which has such meager testimony to support it that the judge would necessarily set aside a verdict found upon it because without sufficient evidence to support it, and which verdict the court had, at the time of submission, correctly determined to set aside. It would be more consistent to refuse a charge upon the issue. It would be as much an invasion of the province of the jury to grant a new trial after *Page 18 the verdict as it would to refuse to submit the issue upon the ground of insufficient testimony.
Outside of these considerations my opinion is that there was no evidence of negligence on the part of defendant's servants authorizing the submission of the issue.
I believe that if we should hold that the testimony warranted the submission of the issue of negligence, and that the court did not err in submitting it, inasmuch as the verdict was general for plaintiff and the testimony sustained it as it does on the other branch of the case (that the railroad was not fenced as required by statute), the verdict should stand. In my opinion the verdict should stand if it is supported on either branch of the case, if there was no error in submitting the issues. Where there is error in admitting testimony and there is another issue upon which there is no error and there is a general verdict in favor of the party for whom the improper testimony was admitted the rule is to set the verdict aside on appeal; because the verdict may have been reached by the illegal testimony. This rule must rest upon the fact that there was error in admitting the testimony; but if there were no error in admitting the testimony the verdict would be allowed to stand if sufficiently supported by testimony on the other branch of the case. So if there were no error in submitting the issue of negligence, though not sufficient evidence to support the verdict upon that issue, and the testimony amply supported the general verdict on the other issue, as to failing to fence the road, it should not be set aside. It is the error that requires the verdict to be set aside. If there is no error in admitting testimony or in submitting the case, and one theory of the action is sustained by proof, the verdict, though general, should not be set aside because there is an issue correctly submitted upon another theory not supported by the testimony.
I think, however, that there was error in submitting the issue of negligence because the testimony did not warrant it, and therefore that the verdict should be set aside; and I also think that, because of the error in submitting the issue, it is our duty to set it aside upon the ground that the testimony does not support the verdict on that issue. It should not have been submitted.
We concur in finding that assignments of error relating to other matters are not well taken. The judgment of the court below is reversed and the cause remanded.