DAVIS, Federal Agent, v. PRESTON, 16 S.W.2d 117

GREENWOOD, J. By this writ of error a reversal is sought of a judgment obtained by defendant in error, Mrs. Mary Preston, as administratrix of the estate of her deceased husband, W. P. Preston, against plaintiff in error, James C. Davis, as Federal Agent, designated by the President as the representative of the United States in suits arising from federal control of railroads.

Two grounds are urged for reversal: First, that the cause of action asserted by plaintiff in error was barred by the statutes of limitations of the United States; and, second, that there is no evidence to warrant the finding that the death of defendant in error’s husband was proximately caused by the negligence of the Director General. This suit was filed on February 26, 1920, by defendant in error individually against Walker D. Hines, as Director General of Railroads, to recover damages resulting from the death of her husband on September 14, 1919.

The original petition charged that the death of defendant in error’s husband, W. P. Preston, was proximately caused by the negligence of the Director General in failing to exercise ordinary care to provide said Preston a reasonably safe place to work, in that the Director General had negligently caused iron rails to be placed near the track at a point where -said Preston was required to alight in performing his duties as switch-man, in such manner as to throw him beneath the moving cars. 'Walker D. Hines having resigned as Director General, John Barton Payne was appointed his successor as Federal Agent.

Later Payne resigned, and on March 26, 1921, plaintiff in error James O. Davis was appointed his successor. On May 81, 1923, the trial court made an order substituting James C. Davis, in his capacity of Federal Agent, as defendant in lieu of the Director General. On November 29, 1922, defendant in error, as the duly qualified ad-ministratrix of the estate of W. P. Preston, was by leave of court substituted as the plaintiff, and she adopted the pleadings previously filed by her individually, with an additional averment that the Director General was engaged in interstate commerce when W. P.

Preston sustained the injury causing his death. On findings to the effect that W. P. Preston’s death was proximately caused by the negligence of the agents of the Director General, as pleaded by defendant in error, she recovered a judgment as administratrix against plaintiff in error, James 0. Davis, Federal Agent, for $3,750, with interest and costs.

Plaintiff in error appears to concede that under the express terms of the Winslow Act, 49 USOA § 74(h)(i), a suit of 'the character of that of defendant in error “properly commenced within the period of limitation prescribed, and pending” at the time the act ■takes effect, “shall not abate by reason of the * * * resignation * * ⅜ of the Director General * ® * or the agent designated” as his successor, but that the plaintiff has the right to substitute the proper federal agent as defendant in lieu of the Director General at any time before satisfaction of final judgment in such suit.

Plaintiff in error’s contention is clearly and succinctly summarized in his application fox-writ of error as follows: “The federal control of railroads terminated, and no substitution was had, and no administratrix was qualified until- more than two years thereafter; indeed, more than two years had elapsed from and after the appointment and qualification of tlie first Federal Agent before any steps were taken to procure a substitution of such Federal Agent, and it was in the course of the trial of this lawsuit that an ad-ministratrix was appointed and qualified, in consequence of which the suit was not ‘properly commenced’ within the period of limitation prescribed in the 1920 Transportation Act.” We think the Supreme Court of the United States has given such construction to the acts of Congress as forbids the holding that this suit was not “properly commenced” by Mrs.

Preston against the -Director General. At the time the suit was filed, the Director General was the prescribed party defendant. The defect in her petition was that she sued as an individual, instead of as administra-trix. She was the real party at interest, no matter by whom the suit was prosecuted. That this defect did not prevent her suit from being “property commenced,” so far as tolling the statutes of limitations is concerned, was in effect declared in Reading Co. v. Koons, 271 U. S. 62, 46 S. Ct. 406, 70 L.

Ed. 837, where it is said: “This court has held that a suit brought by such persons in their individual capacity is not a nullity within the provisions of the act, and that if by amendment the plaintiff is property described as executor or administrator of the decedent, even though the amendment is had after the expiration of the statutory period, the suit may be maintained and a recovery had under the statute. See Missouri, K. & T. R. Co. v. Wulf, supra [226 U. S. 570, 33 S. Ct. 135, 57 L. Ed. 355, Ann.Cas. 1914B, 134]. See, also, Seaboard Air Line Co. v. Renn, 241 U. S. 290, 36 S. Ct. 567, 60 L. Ed. 1006, 17 N.

C. C. A. 1, and New York C. & H. R. R. Co. v. Kinney, 260 U. S. 340, 43 S. Ct. 122, 67 L. Ed. 294. The Texas Supreme Court had previously interpreted the opinions in the Wulf Case and in the Renn ^ Case as requiring the holding that: “An amendment which merely substitutes as plaintiff the personal representative of deceased instead of his dependents, or one which adds to the previous allegations of fact, not otherwise altered, the statement that deceased was injured while engaged in interstate commerce, does not introduce a new cause of action.” Pope v. K. C., M. & O. R. Co. of Texas, 109 Tex. 312, 207 S. W. 514.

This action was commenced before it was barred under the terms of any statute of limitations by the filing of the original petition and the service of citation on the Director General. It was an action pending on February 29,

Section 206(

d) of the Transportation Act of February 28, 1920, c. 91, 49 USOA § 74(d), declares that such an action shall not abate by reason of the termination of federal control, but may be prosecuted to final judgment, substituting the designated agent for the Director General. Therefore the action of the court below in substituting the Federal Agent for the Director General proceeded in strict conformity to the terms of the then governing federal statute. The period of limitation fixed in

section 206(a), 49 USOA § 74(a), related to new suits or to the introduction of new causes of action, and not to a pending suit without change in cause of action. Bagging Co. v. Railroad, 184 N. C. 73, 113 S. E. 595; De Witt v. N. Y. Central R. Co., 206 App. Div. 638, 196 N. Y. S. 909; Davis v. Hagan (Tex. Civ. App.) 255 S. W. 485; Hill v. Davis (Tex. Civ. App.) 257 S. W. 342; Kilgore v. Hines (Tex. Civ. App.) 265 S. W. 744; Dougherty v. Payne (C. C. A.) 291 F. 60, 61. The decision in Davis v. L. L. Cohen & Co., 268 U. S. 642, 45 S. Ct. 633, 69 L.

Ed. 1129, cited by plaintiff in error, is predicated on the conclusion that the substitution of the designated agent as defendant for the railroad company was “the commencement of a new and independent proceeding” ; while the basis of our decision is the conclusion announced in the Wulf Case, and reaffirmed in the Koons Case, that such an amendment as that presented in this ease “introduced no new or different cause of action, nor did it set up any different state of facts as the ground of action, and therefore it related back to the beginning of the suit.” M., K. & T. Ry. v. Wulf, 226 U. S. 576, 33 S.

Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134. After careful consideration, we approve the decision of the Court of Civil Appeals that there was evidence to support the finding of the jury that defendant’s negligence was the proximate cause of the death of W. P. Preston. The evidence plainly supported the finding that the Director General by his agents was negligent in leaving a_ 90-pound iron rail about a foot and a quarter from the coach steps, where it was apt to be encountered by a switchman in alighting from the train and walking beside the track in the performance of his regular duties.

With evidence disclosing the point at which Preston stepped from the coach by the imprint of his heel on the ground about 2½ feet from the end of the rail, with his duties requiring his next step to be made about where he would be tripped by the end of the rail, especially while combating a 35 miles an hour wind, and with his cap and lantern found about where they would have fallen upon his being tripped by the rail, and with his body actually caught and mangled beneath the cars as they proceeded a short distance farther, there being no evidence of anything save the rail to reasonably account for Preston’s fall beneath the train, we would not be justified in holding as a matter of law that a recovery should be denied his administratrix on" the issue of' proximate cause.

Kreigh v. Westinghouse & Co., 214 U. S. 249, 29 S. Ct. 619, 53 L. Ed. 984. The vital question here, which is whether there is a total lack of evidence of contact of Preston’s foot with the rail is not unlike that of whether there was a total lack- of evidence that one Myers met his death through contact with a wire.

The latter question was thus disposed of by the Supreme Court of the United States, viz.: “Considering the testimony, as it must be considered in determining questions of this character in appellate courts, in its most favorable aspect to the plaintiff below, we think the jury might well have found, in view of the place at "which the body of Myers was found near to the wire, with his cap gone from his head, that he came in contact with that wire and was thrown to the ground, and that he survived from contact with the wire, carrying the voltage which it did, and while in this situation was run over and killed by the approaching motorcar, the operator being unable to see his body upon the track because of the want of efficient light in the entry or in the motorcar.

We think reasonable men considering the testimony adduced might well have come to this conclusion, and that it was error in the appellate court to set aside the verdict for entire absénce of testimony upon this subject. In our opinion, the trial court properly left the question to the jury upon testimony which when fairly considered might sustain the verdict.” Myers v. Pittsburgh Coal Co., 233 U. S. 193, 34 S. Ct. 561, 58 L. Ed. 906.

There being direct evidence that defendant negligently left an obstruction in Preston’s path, and there being direct and circumstantial evidence leading to the inference that he encountered the obstruction while discharging his duty and was thereby thrown to his death, the case is one where the jury drew a warranted inference from facts. No piling of presumption on presumption, as is forbidden, was required in order for the jury to find against plaintiff in error on the issue of proximate cpuse. New York Central R. Co. v. Capinski (C. C. A.) 249 F. 347.

Finding no error in the judgments of the district court and of the Court of Civil Appeals, it is ordered that said judgments be affirmed.