#### INTERNATIONAL-GREAT NORTHERN R. CO. v. HAWTHORNE.

No. 2161—7084.

Commission of Appeals of Texas, Section A.

May 25, 1938.

Sewell, Taylor, Morris & Garwood, of Houston, and John A. Newsom, of Buffalo, for plaintiff in error.

Jones & Jones, of Marshall, and B. R. Reeves, of Palestine, for defendant in error.

*1057HICKMAN, Commissioner.

In the trial court defendant in error Hawthorne had judgment against plaintiff in error International-Great Northern Railroad Company for damages for personal injuries sustained by him as the result of a head-on collision between a locomotive in which he was riding and another locomotive pulling a regular northbound passenger train of the railroad company. Hawthorne was the fireman on the engine in which he was riding and received his injuries when he leaped therefrom just prior to the collision. The Court of Civil Appeals affirmed the trial court’s judgment. 90 S.W.2d 895.

The train upon which Hawthorne was riding was called an extra train, but consisted only of an engine and tender. It was being run from Palestine to Taylor to be used in interstate commerce, and it is agreed that liabilities are to be determined by the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. The collision occurred between Buffalo and Jewett, two stations on plaintiff in error’s line. These stations are located about ten miles apart and there is no side track between them. The train with which the engine collided was known as train No. 4 and was a regular passenger train running on a regular schedule. According to the rules of _ the company that train had the right-of-way and it was the duty of those in charge of the extra train to go upon a side track and permit the regular train to pass. The crew of the extra train consisted of a conductor, engineer and fireman. The conductor rode in the cab with the engineer and fireman and was in charge of the train. The regular passenger train was due at Jewett at 8:05 p. m. and at Buffalo at 8:25 p. m. The conductor misread the timetable. It plainly disclosed that the regular train was due at Jewett at 8:05 and he read it as 8:25. Had the train been scheduled to pass Jewett at 8:25, as ‘the conductor read it, then there was ample time to make the siding at Jewett before the regular train was due to arrive there. Accordingly the extra did not take the side track at Buffalo but proceeded on toward Jewett. The collision occurred about halfway between Buffalo and Jewett.

Error is assigned to the refusal of the trial court to direct a verdict in favor of the railroad company. The contentions are that such instruction should have been given on two grounds: First, because Hawthorne was'injured as a direct and proximate result of his failure to perform certain positive and primary duties imposed upon him by the rules of the company; and, second, because, as a matter of law, he assumed the risk of injury.

Various acts of Hawthorne claimed by the railroad company to constitute contributory negligence were submitted to the jury, all of which were answered in Hawthorne’s favor. Other issues embodying elements of assumed risk were submitted and these, too, were answered in his favor. The contention pressed here is that on these defenses there were no issuable facts, but that a peremptory instruction should have been given in favor of the railroad company. This is the second time this case has reached this Court. Upon the first trial a peremptory instruction was given.in accordance with the theories of the railroad company and judgment rendered that Hawthorne take nothing. The case was appealed to the Court of Civil Appeals S.t Waco and in an opinion reported in 63 S.W.2d 243, these contentions were overruled. That court accordingly reversed the judgment of the trial court and remanded the cause thereto for another trial. An application for writ of error from that decision was duly prosecuted and was by this Court refused. We have inspected that application and find that the question of the right of the railroad company to a peremptory instruction was forceably presented therein. By refusing the application this Court approved the holding of the Court of Civil Appeals and disallowed the contentions of the railroad company. We are still of the opinion that the Court of Civil Appeals correctly decided this question, and all assignments presenting it anew in this appeal are overruled.

The principal question presented for decision on this appeal relates to the manner in whiqh negligence was submitted to the jury. In his petition, Hawthorne pleaded generally that the conductor and engineer “did so operate said locomotive as to bring the same into collision with another locomotive moving in an opposite direction as a proximate result of one or all of the following acts of negligence.” The so-called specific acts of negligence were alleged as follows:

> “(a) Said employees negligently failed to observe the rules and/or regulations of the defendant governing the operation of *1058trains, in that they*operated said locomotive past the station of Jewett on the main line of the defendant at such a time and in such a manner as that said engine would occupy such- main line of the defendant when a north hound and regularly scheduled train of defendant was, by the rules, regulations, and/or orders of defendant, designated to occupy said main line.

> “(b) In that said agents, servants, and employee's tof defendant did negligently operate said locomotive past the last station north of - the point of collision, at such a time that the same could not reach the next station and/or passing track south of said station before said regularly scheduled train of defendant left the same.

> “(c) In that said agents, servants, and employees negligently and carelessly failed to observe what is commonly called a time card which was furnished them by the defendant, for the government and operation of .trains, and particularly the locomotive in question, and/or did negligently and carelessly misread or misinterpret said lime card, thereby causing such locomotive to be at a place where said regularly scheduled train was due at the time of the collision.”

The Court submitted but one issue as to the negligence of the railroad company which was as follows:

> “Special Issue No. 1. Do you find from a preponderance of the evidence that the engineer and conductor on the Southbound train were guilty of negligence in causing the trains to be brought together?”

The following objection was timely made to that issue:

> “The defendant excepts arid , objects to Special Issue Nó. 1 contained in the court's charge, for the reason that same is not raised by'the pleadings or the evidence; and the defendant further excepts and objects to said special issue because the same is too general and is not responsive to the pleading,- in that the plaintiff has plead specific acts of negligence in their petition, as to the conductor and engineer, and the submission of said Special Issue in the -form in which it appears in the Court’s Charge would allow the jury to take into consideration acts of negligence other than those specifically plead in the- plaintiff’s petition, and would'allow the jury to go outside the pleadings and the evidence in order to answer said issue.”

The rule is that it is improperio submit negligence in general terms over the objection of the opposite party in a case where specific acts of negligence are pleaded and relied upon. An analysis of the so-called specific acts of negligence alleged in the petition discloses that the principal act complained of was the act of the conductor and engineer in misreading and misinterpreting the timetable. The other acts complained of were but incidents or results of that failure. If the evidence raised an issue of fact as to whether that act of negligence existed, the question submitted to the jury should have related specifically thereto, but this record presents . the unusual situation of there being no issue of fact as to this specific act of negligence. The railroad company placed its conductor upon the witness stand, thereby vouching for him. He testified that he misread the timetablethat it disclosed that the regular train was due at Jewett at 8:05 and he" read it 8:25. To quote his language: “It was 8:05 at Jewett and I read it 8:25; it was 8:25 at Buffalo and I misread it for Jewett instead of Buffalo and I was mistaken.” He was asked this question: “If you had looked at your time table properly arid had known the time that No. 4 left Jewett, as it was your duty to do, you would have known that this train should have gone off the main line at Buffalo?” To which he replied: “That is where we should have gone into the siding, yes sir.” Reasonable minds cannot differ on the question of whether this act of the conductor in misreading his timetable was negligence. He testified that it was a mistake. He was in charge of the train and his mistake was the mistake of the railroad company. It was Hawthorne’s contention at the conclusion of the testimony that no issue of negligence should be submitted to the jury, but only. issues as to the railroad company’s defenses and as to the damages. The trial judge would have committed no error had he adopted Hawthorne’s theory and omitted- entirely the issué of the railroad company’s negligence from the charge.

Negligence to be actionable must be the proximate cause of the injury, but there is no fact issue of proximate cause in this case. Had the conductor correctly read his timetable, of course he would have taken the siding at Buffalo. His failure to do so would have constituted a wilful act, and it is not, and could not be, contended under this record that the conductor would have heedlessly and wilfully caused this headTon collision, had he correctly read *1059His timetable. There is no room for reasonable minds to differ as to this.

These conclusions render it unnecessary for us to discuss the reasoning followed in the opinion of the Court of Civil Appeals in disposing of the questions presented by the assignments now under review. We base our holding upon the ground that one of the specific acts pleaded was established, as a matter of law, to be negligence and a proximate cause of the injuries, and not upon the theory adopted by the Honorable Court of Civil Appeals. "

,,r, , . . ■ , ,. What is written next above disposes of the assignments which complain of the refusal by the trial judge to submit certain special issues to the jury inquiring whether the contributory negligence of Hawthorne "was the sole proximate cause of his injuries. We could not hold, as a matter of law, that the conductors neg-hgence was a proximate cause of the m-juries if the evidence raised an issue of fact as to whether Hawthornes negligence was the sole proximate cause thereof. If the evidence raised a fact issue as to whether Hawthorne’s negligence wás the sole proximate cause, it raised also a fact issue as to whether the conductor’s negligence was a proximate cause at all. We have held that it was a proximate cause as a matter of law from which it follows that this block of assignments should be overruled. ■

The trial judge in his charge to the jury gave an approved definition of proximate cause, including therein the phrase “new and independent cause.” That phrase was then itself defined, and one of tlie assignments complains of the definition. Obviously, in view of the holdings above made, this assignment presents a question which has become immaterial Our decision does not rest upon a jury finding of proximate cause' "

 Error is assigned to the order of the trial court in overruling the railroad company’s motion for a new trial based upon misconduct of the jury. Eight jurors testified upon the hearing of the motion. We have carefully read and reread all of their testimony. It probably establishes that at. some time before the jurors separated mention was made by some unidenti-ñed juror of the fact that the plaintiff would have to pay a part of his recovery to his attorneys, but a careful considerá-ti°n of the testimony leads to the conclu-si°n that a fact issue was presented as to whether this mention was made before or after the verdict was returned into court, Of course, a discussion by the jurors among themselves after" they had returned their .verdict into court would' not constitute misconduct. Where the evidence of 1⁄86 jurors nts a question of fact as t0 the existence of misconduct this court 1⁄8 bound b the finding of the trid court on tbat issue 1⁄8£ same as 1⁄8 1⁄8 an other 1⁄8(1⁄8 issue. This 1⁄8 weU settled. Casstevens Texas & Pacific Ry. Co., 119 Tex. 45632 S.W.2d 637, 73 A.L.R. 89 Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d *770;*Texas & Pacific Ry. Co. v. Gillette 125 Tex. 56383 S.W.2d 307.

• . *1*. Haymf determmed that a fact issue was ?rfented as to the existence of misconduct 1⁄8 becomes unnecessary to discuss the ques-^/bout which much is written m the b»efs as to whether a mere mention of at-torne7 3 íees f°llo7ed immediately by a from ,foreman not t0 coflder that question would amount to material misconduct. In view of the contentions here presented, we do not think it improper to observe, however, that in the case of Tex-as & Pacific Railway Co. v. Gillette, supra, the record disclosed much more than a mere mention of attorney’s fees followed imme-diately by a warning,

The assignment complaining that 1⁄8£ jud t is excessive preSents only a questio¿ of fact> of which question 1⁄81⁄8 court has no jurisdiction. Texas & New Orleans Ry. Co. v. Neill, 128 Tex. 580, 100 S.W.2d 348.

The judgment of the Court of Civil Appeals is affirmed.

Opinion adopted by the Supreme Court.