
    MITCHUM v. CHICAGO, R. I. & G. RY. CO.
    (No. 2357.)
    (Supreme Court of Texas.
    Feb. 17, 1915.)
    1. Appeal and Error @=>1175 — Reversai>-Rendering Judgment.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1626, providing that when the judgment below shall be reversed the Court of Civil Appeals shall render such judgment as the court below should have rendered, the Court of Civil Appeals cannot enter judgment therein unless tho evidence is such that the district court should have instructed a verdict for the appellant, or such that a jury could not find for the appellee.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. @=>1175.]
    2. Appeal and Error @=>1091 — Review— Sufficiency of Evidence.
    On error to the action of the Court of Civil Appeals in reversing judgment for plaintiff and rendering judgment for defendant, the Supreme Court must give to all the evidence which would tend to show that plaintiff was guilty of negligence the construction most favorable to him, and construe the testimony favorably to him in support of the finding of the jury which was reversed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4302-4311, 4331; Dec. Dig. @=>1091.]
    3. Master and Servant @=>289 — Action for Injury — Question for Jury — Negligence.
    On evidence in a section hand’s action for injury from a train approaching from the rear while attempting to remove his hand car from the track, held, that his failure to look for the approaching train was not as a matter of law negligence which would defeat his action.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. @=>289.]
    4. Master and Servant @=>246 — Action for Injury — Negligence—Right to Recover.
    In such case, the section hand’s negligence, if any, was not such negligence as would defeat his recovery, since it was an effort to perform a duty to protect those on the train.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 789-794; Dec. Dig. @=>246.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by J. H. Mitchum against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff was reversed by the Court of Civil Appeals (140 S. W. 811), and plaintiff brings error.
    Reversed and remanded.
    
      R. E. Carswell, of Decatur, Bell & Milam, or Ft. Worth, N. A. Stedman, of Austin, and F. A. Williams, of Galveston, for plaintiff in error. Lassiter, Harrison & Rowland, of Ft. Worth, and T. J. McMurray, of Decatur, for defendant in error.
   BROWN, C. J.

The Court of Civil Appeals found the following facts upon which we must determine the issues between the parties here:

“Appellee was in appellant’s employ as a section hand on its line of railway. In the latter part of January, 1907, as he testified, he and his brother, John Will Mitchum, and one Abies, also section hands, with one Wicher as their foreman, in the discharge of their duties as employes of appellant, were traveling from Park Springs on a hand car moving south on appellant’s line of railway. When the hand car reached a point on said line of railway 250 or 300 yards from a curve in a cut ahead of them, Wicher, saying he thought he heard a train coming, directed appellee and the other employes to stop the car and wait there while he walked ahead and ascertained if a train was approaching from the south. The car was stopped, and Wicher walked on to the curve, or to a point near it, and then, by waving his hand, signaled appellee and the other section men to come on. In obedience to Wieher’s signal, they propelled the car to a point about 50 yards further south, when a ringing of the rails warned them that a train was approaching; whereupon they jumped from the hand car, and, looking north, discovered that a passenger train running 40 or 45 miles an hour was coming towards /them and was only about 50 yards from them. In assisting the other men in getting the hand car off the track, appellee claimed he fell, and so received the injuries he complained of. He recovered a judgment for the sum of $7,500.”

Looking to the statement of facts, we find that defendant in error testified as follows:

“This hand car had four pieces of wood, about that long, by which we could take hold of it and lift it off; one piece on each corner of the car, and two in the middle. They were there for the purpose of lifting it off the track. I took hold of one outside piece and one center one, on the southeast corner of the' car. We got pretty near straight with the car. I mean by that, got up straight, moved it straight. It was awful heavy, and I think I had made one step, and my foot slipped. I had stepped east, to move it off. Fuller Abies was then standing on the back of the ear. He was standing there to make it lighter for us to lift the other end off. When I straightened up with the car and made one step, my foot slipped from under me, and I fell. 1 fell across the rail, crossways, across the iron railroad rail. My back and side hit the rail. I don’t know what I done then.” (Statement of Facts, p. 5.)

The following article of the statute is the authority of the Court of Civil Appeals to render judgment after reversing a case appealed to it from one of the inferior courts:

“When the judgment or decree of the court below shall be reversed; the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases tlie cause shall be remanded for a new trial in the court below.” Article 1626, Vernon’s Say les’ Civil Statutes.

Under this statute this court has uniformly held that the Court of Civil Appeals, after reversing a judgment, cannot enter judgment in that court unless the evidence is of such character that the district court should have instructed a verdict in favor of the appellant.

The only question presented to us by this writ of error is whether the facts of this ease were so conclusive of the negligence of the plaintiff in error that the district judge should have instructed the jury to return a verdict against him, or, as it is otherwise stated in some of the eases, the facts must be of such nature that a jury could not find a verdict in favor of him. Choate v. S. A. & A. P. Ry. Co., 90 Tex. 82, 36 S. W. 247, 37 S. W. 319; Id., 91 Tex. 406, 44 S. W. 69; Eastham v. Hunter, 98 Tex. 560, 86 S. W. 323.

This brings us to the only question, which is: Are the facts as shown in the record of this case so conclusive of the negligence of the plaintiff in error as to bring the ease within the rules of the law and within the power of the court to enter a judgment? In order to test that question, we must give to all evidence which would tend to show that he was guilty of negligence the construction most favorable to him, and determine the question by the construction of the testimony most favorable to him in support of the finding of the jury.

The facts are not capable of much discussion, but it appears to us very clearly that the jury looked at conditions as they existed, with the plaintiff upon a hand car standing upon the track and with the foreman at the south of him, to discover whether the train was coming from the south or not. He believing that it was, and his attention being called in that direction, can it be said that because he did not turn and look for the train due to come from the north he was therefore guilty of negligence? We must bear in mind that it was the duty of operatives of the train from the north to have given a signal to those on the track in order to warn them of the approaching danger. Yet they gave no such signal, and the approach was not discovered until they were within a short distance of the car. Under such conditions, it became the duty of the men on the car to remove it, if they could, to prevent collision with the car and injury to the persons in the passenger coaches, and in the removing of the ear he was not guilty of negligence. They removed it to a place where it did prevent a collision.

Under such circumstances, the action of the plaintiff in this case, in our opinion, cannot be said to be, as a matter of law, an act of negligence which would defeat his right to recovery for injury which evidently grew out of the approach of the train from the north. It is difficult to argue a proposition which is so manifest to the mind of the writer as this is, that, if negligence at all, it is not such negligence as would defeat the recovery, because of the fact that it was an effort to perform a duty to protect those on the train.

We are of opinion that the Court of Civil Appeals erred in entering judgment in this case. It is therefore ordered that the judgment of the Court of Civil Appeals be reversed, and the cause remanded to the district court for trial.

Reversed and’ remanded. 
      @=>For other oases see same topic and KEY-NUMBERin all Key-Numbered Digests and Indexes
     