
    CHICAGO, R. I. & G. RY. CO. et al. v. CARTER et al.
    (No. 527-3996.)
    (Commission of Appeals of Texas, Section A.
    April 23, 1924.)
    1. Appeal and error e&wkey;>927(7) — Facts bearing on refusal of peremptory instruction for defendant considered on appeal in light most favorable to plaintiff.
    Where at close of evidence defendant asked for a peremptory instruction which was refused, facts bearing on question as to whether it should have been given, for the reason that there was no evidence to basé a finding on which judgment was rendered, must be considered on appeal in light most favorable to plaintiff.
    2. Appeal and error <&wkey;l094(2) — Supreme Court bound by finding of fact not disturbed by Court of Civil Appeals. ,
    The Supreme Court is bound by a jury’s finding of fact not disturbed by the Court of Civil Appeals, though contrary to the preponderance of evidence.
    3. Appeal and error <&wkey;IOOI(2) — Verdict supported by substantial evidence not disturbed.
    .If there is substantial evidence to support a finding of fact on a special issue, the verdict thereon cannot be disturbed, regardless of Supreme Court’s opinion as to real facts.
    4. Master and servant <&wkey;>330(3) — Finding flagman was continuing duties when he killed teamster held supported by evidence.
    In action against railroad company for death of a teamster shot by crossing watchman in altercation arising from decedent’s attempt to cross in front of train, where watchman was acting within his duties at beginning of altercation, verdict that when he went to his shanty and got his gun and shot he was continuing his duties, and that killing was in unbroken continuation of controversy, held supported by substantial evidence.
    5. Death &wkey;> 14(2) — -Railroad liable under statute for killing by flagman.
    If, as found by the jury, a flagman was unfit to perform his duties, and was continuing his duties at time he killed teamster in an altercation at a crossing, and his unfitness was the proximate cause of death, under, Rev. St. 1911, art. 4694, the railroad company was liable.
    tgz^For other cases see same topic and KEY-NXJMBBR in all Key-Numbered Digests and Indexes
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by Minnie D. Carter. and others against the Chicago, Rock Island & Gulf Railway Company and others. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (250 S. W. 192), and defendants bring error.
    Affirmed.
    N. H. Lassiter and Robt. Harrison, both of Fort Worth, and Phillips, Townsend & Porter, of Dallas, for plaintiffs in error.
    Smith, Robertson & Robertson and Ethe-ridge, McCormick & Bromberg, all of Dallas, and Carden, Starling, Carden, Hemphill & Wallace, of Fort Worth, for defendants in error.
   CHAPMAN, J.

This suit was brought in one of the district courts of Dallas county by defendants in error, hereafter called plaintiffs, for damages against plaintiffs in error, hereafter called defendants, growing out of the killing of plaintiffs’ husband and father, one Carter, by a flagman of defendants, named Lesure, at a railway street crossing in Dallas.

The ease was submitted to the jury upon special issues, and upon which the jury found the following facts in the language of the Court of Civil Appeals:

“The jury found-at the time Lesure went to the shanty, got his gun, and killed Carter, he was continuing in his duties as watchman to deal with Carter; that the shooting was an unbroken continuation of the controversy; that Lesure was an unfit person to perform the duties required of him as watchman; that his unfitness to perform his duties was the proximate cause of Carter’s death; that Lesure was incompetent to perform the duties required of him as watchman; that such incompetence was the cause of Carter’s death; that the appellants by the use of ordinary care could have found out prior to the occasion of the tragedy that the watchman was an unfit'person to perform the duties of his employment; that the watchman, Lesure, did not kill Carter in self-defense; that Carter was not guilty of any negligence either in his conduct or words upon the occasion of the difficulty resulting in his death.”

Judgment was rendered in favor of plaintiffs, from which defendants appealed to the Court of Civil Appeals of the Fifth District, which court affirmed the judgment of the district court. 250 S. W. 192.

At the close of the evidence defendants asked the court for a peremptory instruction, which was by the court refused, and defendants have now raised the question in this court that their requested peremptory instruction should have been given by the trial court, for the reason that there was no evidence upon which to base the finding of a jury that the flagman was acting within the scope of his duties at the time he killed Carter.

In considering this question the facts bearing upon it must be considered in the most favorable light to plaintiffs, and the facts upon this issue detailed in the most favorable light to plaintiffs are as follows:

Commerce street in' Dallas runs east and west, and at the west end of the street was the Commerce street bridge across Trinity river; just off the east end of the bridge were three railroad tracks running north and south across Commerce street. Between the railroad and the river, about 12 feet from the east end of the bridge, on the south side of the bridge, was located a flagman’s shanty. Defendants kept a flagman at this crossing, whose duty it was to watch for trains crossing the street at this point, and to warn and protect the traveling public that crossed the three railroad tracks On Commerce street at the crossing mentioned. The shack mentioned was used by the flagman. On November 9, 1914, a teamster named D. H. Carter was driving a team to a gravel wagon, going west on Commerce street, and approaching the tracks above mentioned from the east, and at the same time a train on one of the three tracks above mentioned was approaching Commerce street from the north; said train being composed of an engine, tend-der, and gravel spreader car. When the teamster’s team reached the track the train was on, or the track next to it on the east, the flagman ran in front of the team and stopped them, and backed them off the track by catching hold of the bridles of the team, and then the train passed, and stopped after-getting a few car lengths past the crossing. While the flagman was in front of the team and the teamster on the wagon, just before and at the time the train was passing, the teamster and the flagman were arguing with each other. Immediately after the train passed the flagman said to the teamster, “You d- son of a b-, you stop until the train passes, and then you can go,” and then the teamster began to get off his wagon, and the flagman turned and walked in a fast walk to his shack, and went into his shack. Immediately after the flagman made the last above mentioned remark to the teamster, the teamster got down from his wagon with a whip in his hand, and advanced to within 15 ox 20 feet of the flagman’s’ shanty, and stopped, and, immediately after the teamster stopped, the flagman appeared at the door of the shanty, and fired two shots, killing the teamster. At the time the teamster left his wagon the team and wagon were clear of the railroad tracks, and remained at the same place until after the shooting.

The great preponderance of the- evidence shows that the flagman was acting in self-defense in shooting the teamster, but the jury found otherwise, and the Court of Civil Appeals did not see proper to disturb that finding, so this court is bound by the finding of the jury. The jury found that at the time the flagman went to the shanty and got his gun and killed Carter he was continuing in his duties as watchman to deal with Carter, and we understand the law to be that, if there was any substantial evidence upon which to predicate such a finding, the verdict of the jury cannot be disturbed by this court, regardless of what our opinion is as to the real facts.. The Court of Civil Appeals in their opinion say:

“The evidence tended to show that the. movement of the train which took it across the track was but the process of clearing a main track, and that the train was ready to come back across the intersection in going on a siding when the altercation was ended by the shooting.”

And we are bound by this finding of fact, and, as stated, after the train had passed, the flagman was still cursing the teamster, which would tend to show that the- flagman was still trying to keep the teamster from crossing the tracks until the traiu had recrossed the street after going on the siding. That the teamster was clearly acting within the scope of his employment at the time the personal controversy began there can be no doubt, and the facts also clearly show that the difficulty was a continuous one from the tiiiie it began until the shooting, as found by the jury. The whole time of the difficulty was very short, and it would be extremely difficult for us to determine just when the flagman ceased to act within the scope of his employment and began to act as his own master, if he was so acting at the time of the shooting, and under the peculiar facts of this case we do not think that the law can undertake to say just when the flagman ceased to act as agent, or> that he did so cease, but that the finding of the jury on that matter should govern.

There being evidence from which the jury might find that the flagman was continuing in his duties at the time he killed the teamster, and, having so found, and having also found that the shooting was an unbroken continuation of the controversy, we cannot disturb these findings.

We think that the law as stated in New Ellerslie Fishing Club v. Stewart, 123 Ky. 8, 93 S. W. 598, 9 L. R. A. (N. S.) 475, is applicable to this case, and is in the following language:

“It is difficult to define with accuracy the point at which the master’s liability for the acts of his servant ends, but, under the facts of this case, Pro'ctor, when he attempted to prevent appellee from fishing, and when the altercation between them commenced, was clearly acting within the scope of his employment, and the assault and battery complained of was merely a continuation of the first act. There was no appreciable length of time between them. Everything that was done happened on the premises under the control of the fishing club, and where Proctor had authority as its agent. Where the agent begins a quarrel while acting within thé scope of his agency, and immediately follows it up by a violent assault, the master will be liable, as the law under the circumstances will not undertake to say when in the course of the assault he ceased to act as agent and acted upon his own responsibility.”

Plaintiffs in error take the position that:

“When no special relationship exists between the company and the person killed, h railway company owning and operating a railroad is not liable for the -willful and intentional killing of a person by the railway company’s servant.”

We cannot agree with this contention, for the reason that the jury found that the servant was an unfit person to perform his duties, was continuing in his duties at the time of the shooting, and that his unfitness was the proximate cause of the death of Carter, and that plaintiffs in error by the use of ordinary care could have, prior to Carter’s death, ascertained that the flagman was an unfit servant, which brings the case clearly within the provisions of article 4694, Revised Civil Statutes.

We recommend that the judgment of the Court of Civil Appeals and that of the district court be affirmed.

CURETON, C. J.

The judgment recommended in the report of the Commission of( Appéals is adopted, and will be entered as the judgment of the Supreme Court.  