
    HOUSTON E. & W. T. RY. CO. v. BOONE et al.
    (Supreme Court of Texas.
    May 1, 1912.)
    1. Trial (§ 122) — Argument of Counsel-Failure to Introduce Witnesses.
    In an action against a railroad company for the death of a switchman, defendant’s engineer, fireman, and brakeman, constituting the switching crew with deceased, at or near the place of the accident, were present in the courtroom as witnesses for defendant, and were placed under the rule, but were not offered as witnesses by defendant. Held, that such conduct justified plaintiff’s counsel in commenting thereon to the effect that defendant had used all means to close the light a'gainst the manner in which the deceased was killed, because they knew that if such witnesses were introduced counsel for plaintiff would get testimony from them that would help ■ plaintiff’s case and harm defendant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 299; Dec. Dig. § 122.]
    2. Negligence (§ 134) — Action for Injuries — Weight of Evidence — Negligence.
    Negligence, like any other issuable fact, must be proven; but it need not be shown by direct and positive evidence, but may be inferred as a reasonable deduction from proved or conceded facts.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 267-273; Dec. Dig. $ 134.] . •
    
      3. Negligence (§ 136) — Review—CONCLUSIVENESS OE VERDICT.
    Where there is any evidence froto which the jury might have properly found negligence, or any • other issuable fact, its finding is conclusive and beyond review by this court; but whether there is such evidence is a question of law, which it is the duty of the Supreme Court to decide.
    : [Ed. Note. — Eor other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.]
    4; Appeal and Error (§■ 1001)— Court oe Civil Appeals — Appellate Jurisdiction —Reversal eor Insueeicient Evidence.
    The Court of Civil Appeals has jurisdiction to reverse the finding of a jury on an issuable fact, where, in its opinion, the evidence was insufficient to support the finding.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.]
    5. Master and Servant (§ 137) — Duty oe Master — Place eor Work — Railroad Cars.
    Where a switchman, whose duty it is to set the brakes and stop a car after it is kicked on a switch, in order tó do so, is required to stand in a position from which he could not see the approach of cars following him, the railroad owes him the duty to exercise ordinary care in passing a following cut of cars upon the same switch.
    [Ed. Note. — Eor other eases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. § 137.]
    6. Master and Servant (§ 278) — Appeal and Error (§ 1001*) — Action for Injuries —Weight oe Evidence — Negligence.
    In an action for the death of a switchman, held, that there was evidence from which defendant’s negligence in causing the death of deceased might be inferred; and hence that the. Supreme Court was without authority to review the finding.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972; Dec. Dig. § 278; Appeal and Error, Cent.Dig. §§ 3922, 3928-3934; Dec.Dig. § 1001.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by Ora K. Boone and others against the Houston East & West Texas Railway Company. Judgment for plaintiffs was affirmed in the Court of Civil Appeals (131 S. W. 616), and defendant brings error.
    Affirmed.
    Baker, Botts, Parker & Garwood, Lane, Wolters & Storey, and Wm. A. Vinson, all of Houston, for plaintiff in error. Hogg, Gill & Jones, of Houston, for defendants in error.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic.and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   DIBRELL, J.

Plaintiffs below, Ora K. Boone and others, the surviving wife, the minor child, and mother of T. L. Boone, brought this suit in the district court of Harris county against the Houston East & West Texas Railway Company to recover damages resulting from the alleged killing of said T. L. Boone on September 30, 1907, at Lufkin, Tex.

The grounds upon which recovery was sought were substantially that deceased, who had theretofore been in the service of the «defendant as freight conductor, was, at the ¡time of his death, temporarily employed as switchman in the railway yards' at Lufkin. The duties of a switchman involved the handling and operation of engines and cars, and that, while so engaged in the performance of his duties, it became necessary to switch some cars onto several side or switch tracks on the night of the accident. By order of defendant’s foreman in charge of the switching crew, the deceased “was directed to take charge of tracks Nos. 4 and 5, and to mount freight cars as they were kicked in to be set on that siding, to let them run the proper distance, and to set the brake and stop them at the right point.” In the proper performance of his duties, the deceased mounted a box car that had been kicked onto that siding, and began to set the brake, for the purpose of stopping it, which was at a point about 600 feet from the entrance of the car on the side track. The cars were being kicked onto the siding by means of an engine, and the crew, after kicking the first car on track No. 4, kicked another car on track No. 5, and then kicked two other cars onto track No. 4. That the two cars kicked onto track No. 4 shortly after the car on which deceased was mounted, for the purpose of setting the brake, that such car should serve as a bumper, “were kicked in violently and at a dangerous rate of speed, and the brakes thereon were not set, and no one was placed on them to control their speed, or to stop them, or to lessen their speed, in order to prevent damage or injury, and that the said cars were thus propelled violently and rapidly against the car on which deceased was engaged in setting the brakes,” and that from the impact from said cars, so violently thrown against the car on which deceased was working, he was thrown from the car and run over and crushed to death. “That there was no light on the several cars that were kicked in against the car on which deceased was riding, and that there was no warning of any sort given of the fact that they were kicked in, or would be kicked in, either at a dangerous rate of speed, or any other speed, before he had finished his duty of stopping the first car, and was ready to stop other cars that were kicked in on the siding of which he had been placed in charge.” The defend^ ant answered by general demurrer, general denial, assumed risk, and contributory negligence. The cause, under an appropriate charge by the court, was submitted to a jury, and upon their finding for plaintiffs a judgment for $12,500 was rendered against defendant.

The only issue of serious import we feel called upon to determine is whether there is any evidence in the record upon which the jury could base a verdict which presupposes negligence on the part of defendant from which the death of deceased resulted. The other questions raised by the assignments refer to certain special charges requested by •defendant and refused by tbe court,' and tbe comment of counsel for plaintiffs on tbe •circumstance of tbe presence at tbe trial of tbe engineer, fireman, and brakeman, constituting tbe switching crew witb deceased, •at or near tbe place of tbe accident, as witnesses for defendant, but wbo were not offered by defendant as witnesses.

Tbe matter and substance of tbe special •charges refused were embodied in tbe court’s general charge, which we think was comprehensive and fair.

Tbe language of counsel for plaintiffs complained of is as follows: “Tbe defendant’s attorneys have used all means to close the light against the manner in which deceased was killed, because they had witnesses Coker, the engineer, Roberts, the fireman, and Reynolds, the yardmaster, placed under the rule, but did not offer them as witnesses; they knew that if these witnesses were introduced counsel for plaintiffs would get testimony from them that would help these plaintiffs in their case and harm the railroad company.” It has always been considered proper, both in criminal and civil cases, for counsel to comment on the absence of witnesses, when it is within the power of such defaulting party to produce them, and when such witnesses are possessed of a knowledge -of tl^e transaction inquired about. This is especially permissible where such party has such witnesses under process, and within the jurisdiction of the court, and fails to place them upon the stand. Comment, upon such circumstances, cannot be said to be beyond the record, but fairly within it. The value •of such comment must be left to the discretion of counsel conducting the case, and the freedom of speech in the argument of counsel for their respective clients cannot be circumscribed less than to matters within the record, or fairly deducible therefrom. Missouri Pac. Ry. Co. v. White, 80 Tex. 207, 15 S. W. 808.

As heretofore suggested, the most serious question raised in the petition for writ of error is that complaining of the court’s failure to instruct a verdict for defendant. There was no eyewitness to the death of Boone, and the immediate causes that produced his death, and whether the result of defendant’s negligence, must be established by circumstances. Negligence, like any other issuable fact, must be proven; but there exists no rule of evidence which denies the right to make such proof by circumstantial evidence. This principle is laid down in Thompson’s Commentaries on the Law of Negligence, vol. 6, § 7863, as follows: “Negligence of either the defendant or the plaintiff need not be shown by direct and positive •evidence, but may be inferred from other facts which are proved in the case, when such an inference is a reasonable and natural one to be made; but a presumption of negligence cannot be based on mere theories, or by simple deduction from other presumptions. In other words, a verdict for negligence may be supported by inference; but such inference must be a logical, probable, and reasonable deduction from proved or conceded facts. Negligence cannot be a mere matter of conjecture, but must be fairly inferable from the evidence. This principle permits the admission of circumstantial evidence to contradict positive and direct testimony given by eyewitnesses. It is not incumbent upon the plaintiff, after proving an accident which implies negligence, to show the particular negligence, when from the circumstances it is not in his power to do so.”

The question, however, for this court is not whether the evidence, direct and circumstantial, is sufficient to establish the negligence of defendant, and that the death of deceased was caused by such negligence, but whether there is any evidence in the record from which the jury might have properly found negligence on the part of defendant in producing Boone’s death. Judge Brown, in I. & G. N. Ry. Co. v. Vallejo, 102 Tex. 73, 113 S. W. 5, 115 S. W. 25, very clearly laid down the rule on this subject, by which this court is governed, in the following words: “If there is any evidence in this case which tends to prove negligence on the part of the employSs of the railroad company that caused the injury, then an .issue of fact was made, to be decided by the jury, and of which this court has no jurisdiction. Whether there is such evidence in the record is a question of law, which it is the duty of this court to decide.”

If plaintiffs’ cause was submitted to this court upon the facts in the record for an adjudication, a very different question would be presented, and we doubt whetheiv the result reached by us would be in harmony with that reached by the jury. On the other hand, we cannot say, as matter of law, that there is no evidence from which negligence may be reasonably inferred, and from which negligence the deceased met his death. So far as this court is clothed with power, if there is in any given case evidence establishing or tending to establish an issuable fact, the finding of the jury is a sealed book, which may not be opened without, doing violence to a well-fixed rule of jurisdictional limitation. It was within the jurisdiction of the Court of Civil Appeals, so given by law, to have reversed this case on account of the insufficiency of the evidence, if, in its opinion, the evidence was insufficient; but that court has not seen fit so to do. On the contrary, the findings of fact by that court and its conclusions are set forth and fortified by logical and reasonable deductions.

In order to a clearer understanding of the ruling of this court upon the evidence in the record which tends to establish negligence on the part of defendant, and from which it is thought, as matter of law, the jury might have inferred negligence from which the deceased received his death, we reproduce the material portions of the testimony of S. A. Parris, the only witness who testified upon this subject:

“On the SOth day of September, .1907, I .resided at Lufkin, Tex., and was employed by the Houston East & West Texas Railway Company as switchman. On the occasion in question, my associates in switching were A. C. Reynolds, engine foreman and yardmaster, T. L. Boone, switchman, Lee Coker, engineman, and O. Roberts, -fireman. Boone was switching with others at Lufkin on tracks 4 and 5, and his duties were to take care of all cars kicked down those tracks by the crew, and as the tracks were downgrade his duties were to climb on and stop first cars which came down those tracks and set brakes on them, so that the following cars1 would come against them as a buffer; also to see that brakes were not knocked off and allow cars to run out west end of track.
“Boone died oh the night of September 30, 3907. After switching some time in east end of yard, we'brought the engine down main, line, and Foreman Reynolds asked me if I had seen Boone lately. X told him I had not. We then went up tracks 4 and 5, Reynolds between the tracks, and I on the outside of No. 5. About five or six hundred feet from east end, Reynolds, said, ‘Here he is,’ and I crossed over, and found his body lying between tracks 4 and 5, badly mangled. He-gasped once or twice after we reached him. His right leg and groin were badly crushed, and one of his hands was badly mangled. This was about 11:15 p. m; He was lying on the ground between tracks 4 and 5. His head was toward track 5, and his feet toward track 4; his left hand was on his breast, and his right hand partly under him and badly mangled. His lantern was lying in the middle of the track under the cars, and was broken.
“The last time X saw Boone alive he was riding car down track No. 4 to set brake when car had run far enough, so as to hold other cars which came down same track.
“Yardmaster Reynolds assigned Boone to his place. . He was the only person present that had any authority to assign Boone to that or any other task. He was yardmaster and engine foreman. Before we quit switching, we pushed in onto those tracks probably 10 or 12 cars. I think there were three cuts kicked in, including the one he rode in first, which was on track 4. I do not know how many cars had been handled by Boone before we quit switching. He rode in on one car first, and' this was followed by a string of some three cars. The cars, when cut off from the engine, were started probably, from four to six miles per hour; but it was downgrade, and they would be going considerably faster by the time1 they struck the- car used as buffer, as before stated, which was the car I last saw Boone on. No further attention was paid to them by me, except to see that they cleared No. 5 track before I cut off cars for No. 5.
“After pushing in of the last string of cars on side track No. 4, it was about 5 or 10 minutes before I saw Boone again, when we found him dead, as I have stated before, about five or six cars length east of first car shoved in on No. 4. The second cut of cars was coupled onto first car kicked in on track 4, but was separated one or two car lengths from last string shoved in.
“The brake on the first car shoved in, when afterwards examined, was apparently good and about half wound up on west end of car. The chain was about half wound up, but dog was not caught. As to signs, the first indicar tion I saw was blood on the rails; after-wards, in daylight, I found blood on running gear on west end of first car shoved in. 1 do not remember finding any indication on other cars. I think our crew on that occasion pushed in five cars on track 4. There were .three together on west end, and a span of about one car length between the next cut, where the body of Boone was found.
“It was a dark night, and members of'the crew were working by lantern. The engine used was a road engine. It had an electric headlight in front and a small electric light on top of cab in the rear. The headlight was turned in opposite from where Boone was working.
“I have been engaged in the railroad service for about 15 years, and of this time’ I spent 4 years in switching, and am familiar with the methods, nature, and character of such work. It would have been difficult for Boone to see a cut of cars coming, considering the fact that he was down 'on an air platform, if engaged in setting the brake. This cut of cars was not in charge of any one as it rolled into side track No. 4, nor was there any light on it. As - to the shoving in of the second string of cars, no warning was given Boone. He was about 32 years of age, strong and healthy, and was competent in his line of work.
“The engine moved by signals, given by myself and Yardmaster Reynolds. Mr. Reynolds gave signal to shove the last string of cars in on track No. 4. Oars wduld be going at about four miles per hour when cut off; but, as it was downgrade, they might be going considerably faster when stopped by the buffer car mounted by switchman working in the field; that is, the man who took care of cars when kicked by us down tracks Nos. 4 and 5.
“The sidings were curved, and the view of the engine and running cars would be obstructed from point where Boone was at work, if on track 4; nor could we see Boone from the point at which we were at work. There was no way for us to signal Bo.one of the approach of cars, or' otherwise protect Mm from injury. There was no signal given, when switching cars, by whistle or bell that I remember.”

This case is clearly distinguishable from that class of cases cited by defendant where it has been held that a given state of evidence, as a matter of law, contains nothing from which negligence can be inferred, in that in those cases, as a general rule, either no relation of duty exists on the part of the railroad company towards the injured party, or facts existed showing such contributory negligence as required affirmative evidence to rebut; while in the case at bar the duty of the master to the servant obtains, and no element of contributory negligence was shown.

The defendant owed the deceased the duty of the exercise of ordinary care in passing the second cut of cars down track No. 4, in view of the undisputed testimony that his duty was to set the brake and stop the car in a position about 600 feet down the track, and that, in order to do this, he was required to assume a position on the west end of the car, from which he could not see the approach of the second set of cars." His view was also obscured by a curve in the track. Under these circumstances, the jury might reasonably have inferred negligence. The cars were kicked on the track, and sent with an initial speed of from four to six miles an hour on a downgrade, without a signal or notice or warning of any sort. The night was dark, and no lights were on the cars. The physical facts clearly show that the second cut of cars were sent down the track with great and violent force, for the reason it was shown that the chain on the brake was half wound up, and the car had been sent beyond the body of deceased, where found, some five or six car lengths. This is more clearly shown in.view of the fact that the last cut of cars on track No. 4 was at least one car length east of the first and second cuts, which had been attached by the automatic couplers. The jury was confronted with the fact that, notwithstanding the first car had been partially set by the brake, yet the impact of the second cut of cars was so great and violent as to push it five or six car lengths down the track; while the third cut of cars, of their own motion, were stopped one or more car lengths before reaching the said cars. Can it be said defendant owed Boone no duty, under the circumstances shown by these facts, to warn him of the approach of the second cut of cars? We are not prepared to answer in the negative. It therefore cannot be said, as a matter of law, there is not any evidence in the record from which defendant’s negligence may be inferred by the jury. This is the test of the jurisdiction of this court.

Other reasons might be shown why we think there was some evidence from which the jury might have inferred negligence, and by reason of which we are not authorized to say, as matter of law, no \ such evidence existed. It cannot be said, we think, that the manner of deceased’s death is a matter of mere conjecture; but there were facts proven from which a jury might conclude with reasonable certainty just how he was killed, and the producing cause.

Adjudicated cases on questions of evidence are valuable as precedents only when based on the same or not dissimilar facts, and such cases are rarely found. We have carefully reviewed all the eases cited in the brief of learned counsel for defendant, but find no authority in any of them that would warrant the ruling in this case that there is a total absence of evidence upon which the jury might base a finding of defendant’s liability. We are therefore constrained to rule that the judgment of the Honorable Court of Civil Appeals should be affirmed; and it is so ordered.  