Fort Worth & D. C. Ry. Co. v. Westrup

SPEER, J. This suit was instituted by defendant in error against plaintiff in error to recover damages for personal injuries. The plaintiff, an employee of the defendant, was engaged, along with two other employees, in making some repairs upon a refrigerator car. One end of the car had been jacked up and rested on trestles, and the truck and wheels were removed. The draw-bar was placed underneath the front of the car thus jacked up, and, as the drawbar was raised, blocks were piled beneath to hold it in place until it could be more securely fastened. The men were engaged in putting the spring in the drawbar, and it was the duty of one to hold the spring on the opposite side of the drawbar from where the plaintiff was working. The plaintiff was on the ground beneath the end of the. car, as he was thus assisting in the repairs. The employee, whose duty it was to hold the spring in place, let it fall; thereupon he shouted, “Book out!” and, in an effort to extricate himself, the plaintiff received the injury for which he sued. He was not struck by the falling spring, but was injured through coming in contact with some blocks or other obstacles in his efforts to escape injury. The case was submitted upon special issues, and. the jury found that the action of the employee in letting the spring fall was negligence proximately causing the plaintiff’s injury, and that the plaintiff was not guilty of contributory negligence in any respect, and judgment was rendered for the plaintiff in the amount of damages found by the jury. The Court of Civil Appeals affirmed the judgment. 278 S. W. 490. But two questions are presented in the application, both of which were -fully discussed and decided in the Court of Civil Appeals. They are, in effect, that the negligence of plaintiff in error’s employees in permitting the spring to fall was not, as matter of law, the proximate cause of defendant in error’s injury, but that the cry or warning, “Book out!” given by the employee when the spring did fall, was an efficient, intervening cause, itself the sole proximate cause of the injury, and that, since the jury found the giving of this warning was not negligence, judgment should have been for the company; and, second, that the trial court had erred in admonishing counsel for the company privately that, if he asked the plaintiff certain questions in the presence of the jury tending to show that he was a “strike breaker,” counsel would be held in contempt of court. We think these questions are rightly disposed of in the splendid opinion by Chief Justice Fly. Bittle can be added to the reasons given in that opinion. A consideration of two or three of the underlying principles involved will but accentuate the correctness of the conclusions reached by the Court of Civil Appeals. First, it is always required that the intervening, efficient cause which will have the effect to break the continuous sequence of an antecedent cause must be a “new” or “independent” cause. Now, the cry of the employee, “Look out!” when he discovered that the spring had fallen, cannot in any just sense be said to be a new or independent thing. The alarm thus given was a most natural sequence of the falling. Indeed, it was so inseparably connected therewith as to be a part of the act, so much so that the rules of evidence would treat the exclamation as a part of the act which it accompanied — the res gest®. The exclamation could only have meant to make known the danger incident to the falling spring. It is not, therefore, that “new” and “independent” cause which the law requires, sufficient to break the natural and continuous sequence of the preceding act of negligence. Mexican, etc., Co. v. Musette, 7 Tex. Civ. App. 169, 24 S. W. 525 ; Id., 86 Tex. 708, 26 S. W. 1077, 24 L. R. A. 642; Texas & Pacific Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Scale v. G., C. & S. F. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602. In the next place, an intervening cause which is set in motion by the original wrongdoer can never excuse the original act. The [1055] general rule is that whoever does a wrongful act is answerable for all the consequences that may ensue in the ordinary course of events, though the consequences are immediate and directly brought about by an intervening cause set in motion by the original wrongdoer. The G. R. Booth, 171 U. S. 450, 19 S. Ct. 9, 43 L. Ed. 234; Seith v. Commonwealth, etc., Co., 241 Ill. 252, 89 N. E. 425, 24 L. R. A. (N. S.) 978, 132 Am. St Rep. 204; 22 R. C. L. p. 134, § 19. Further, the cry or warning in this case could not possibly have been an intervening efficient cause of the injury for this: It was the mere occasion or means of discovery by defendant in error of the apparent danger to which the company’s negligence had tsub-jeeted him. Of course, if the negligence of the employee in dropping the spring produced a real or apparent danger to defendant in error, and he was injured in an effort to escape such real or apparent danger, and was not guilty of contributory negligence in the manner of his effort to escape, clearly he would be entitled to recover his damages, and his right and duty to escape, if possible, the threatened injury, arose when he discovered the danger. What difference can it make whether that discovery arose from seeing the object fall or hearing the shout or warning which accompanied its fall? In either event, it is but the discovery of the danger which authorized him to move for his safety. No authority has been cited, and, indeed, we think none can be found, holding that the mere discovery of a jeopardy produced by negligence is itself an intervening cause of injury received in attempting to avert harm. Counsel for plaintiff in error has strenuously argued that there is no evidence to authorize the submission of the issue that defendant in error was in a place of real or apparent danger; but this is so obviously wrong as to need no comment. It is unthinkable that one prone upon his back beneath a heavy car shored up on trestles, engaged in putting in place a heavy drawbar with the necessary springs and the like, knowing they might fall upon him, was not justified in considering himself in real or apparent danger on hearing his fellow workman cry, “Look out!” The very situation, including the warning and the attempted escape by defendant in error, bespeaks the apparent danger. To heed such a warning would be prudence, while to disregard it might be negligence of the grossest kind. We recommend that the judgments of both courts be affirmed. CURETON, C. J. The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.