CHILDRE et ux. v. CASSTEVENS, 224 S.W.2d 461

BREWSTER, Justice. Petitioners, L. H. Childre et ux., sued William Casstevens, respondent, for damages for the death of their son, Eston Childre, alleged to have been proximately caused by respondent’s negligent operation of an automobile. While petitioners’ son was walking on the highway north of Stephenville near, midnight on November 29, 1947, he was struck and killed by an automobile driven by respondent. Petitioners alleged that their son’s death was proximately caused by the negligence of respondent in driving his car on his left of the center of the highway, and in failing to keep a. proper lookout.

Following jury findings on those issues sustaining petitioners’ allegations the trial court entered judgment in their favor. But the Court of Civil Appeals reT versed it and rendered judgment for respondent. 217 S.W.2d 884, 88S.

As stated in that court’s opinion, toe question for decision there was Casstevens’ contention that “the trial court erred in submitting the above grounds of negligence and proximate cause to the jury and in rendering judgment thereon because the evidence was not sufficient to support an affirmative finding on such issues.” Then, after a review of some of the testimony on the issue of respondent’s driving to his left of the center of the highway, the Court of Civil Appeals concluded,'‘“The evidence is insufficient to support a finding that appellant was driving his car on his left side of the highway.” On toe issue of proper lookout the court said: “The only evidence as to the failure of appellant to keep a proper lookout is that it was a clear moonlight night; that the road was . not obstructed, and that the head lights of his automobile were burning.

The record is silent as to where the deceased was and what, he was doing immediately prior to the collision.

This is not .sufficient to support the finding of the jury that appellant failed to keep a proper lookout.” The writ of error was granted on petitioners’ point reciting, “The Court of Civil Appeals erred in reversing the trial court’s judgment, and rendering judgment in this cause, for such is, in effect a holding there was no evidence to support the findings of the jury and the trial court’s judgment rendered thereon.” Under the record in this case there are at least three reasons why the judgment of the Court of Civil Appeals does not amount to a holding of no evidence.

Ip the .first place, as of course that court knows, the question of no evidence and that of insufficient evidence are two entirely different concepts, the former presenting a question of law and the latter a question of fact. .See Hall Music Co. v. Robinson et al. 117 Tex. 261, 1 S.W.2d 857. Again, in the light of that difference, the opinion very plainly says the evidence is “insufficient” or “not sufficient” to support petitioners’ issues. If that court had meant “no evidence” it could easily have said so.

Finally, after a careful study of the statement of facts we are convinced that there was at least some evidence in support of petitioners’ pleaded issues; therefore we must assume that the Court of Civil Appeals was of the same mind, in the absence of:a clear statement to the contrary. As to that part of the order reversing the judgment of the trial court because of insufficiency of the evidence, we have no jurisdiction. Deen v. Birdville Independent School District, 138 Tex. 339, 159 S.W. 2d 111.

But that part of it which rendered judgment for respondent, as complained of by petitioners in their point of error above quoted, does present a question of law reviewable in this court. Having concluded that the evidence was insufficient to support the jury’s findings on petitioners’ allegations of negligence, the Court of Civil Appeals was without authority to render judgment for respondent; the only order it had power to enter in that situation was to remand the cause to the district court for a new trial. There is an interesting illustration and discussion of this proposition in two appeals of Choate v.

San Antonio & A. P. R. Co., 90 Tex. 82, 36 S.W. 247, 37 S.W. 319; Id., 91 Tex. 406, 44 S.W. 69. And the principle was lately reviewed and reaffirmed by this court in Woods v. Townsend, 144 Tex. 594, 192 S.W.2d 884. So we need not discuss it further here. It follows that the order of the Court of Civil Appeals reversing the judgment of the trial court, is not disturbed. But its order rendering judgment for respondent is set aside and this cause is remanded to the district court for a new trial. Reversed and remanded to the district court.