Hines v. Parry , 1920 Tex. App. LEXIS 1237 ( 1920 )

HALL, J.

Defendant in error, Parry, filed-this suit against Walker D. Hines, Director-General of Railroads, alleging that he was injured in a wreck on the line of the St. Louis, San Francisco & Texas Railway Company, whereby he sustained damages in the sum of ?15,500. The case was tried before a jury, resulting in a verdict and judgment for $2,500.

Plaintiff in error requested the court to charge the jury as follows:

“Gentlemen of the jury, you are instructed, that if you find and believe from the evidence tV at the derailment of the train on which plaintiff claims to have been injured was caused by some latent defect in the road or the rails, or the ties, which were unknown to the defendant, its agents or employees, and which could not be known or discovered by the use of reasonable and careful observation, care, and diligence, such as a prudent person would exercise under like circumstances, the defendant would not be guilty of negligence as the term ‘negligence’ is defined in the court’s charge.”

It is insisted under this assignment that the evidence is sufficient to show that the accident was due to some latent defect in one of the rails which could not have been foreseen by the use of reasonable diligence. The refusal of the court to give this charge is not error." A carrier of passengers must use that high degree of care and skill which very cautious persons generally use under such circumstances to prevent injury to passengers upon its trains. This care and skill pertains not only to the original construction of the roadbed, track, equipment, and appliances necessary in the conduct of its business, but also to the examination and maintenance of the same. I. & G. N. Ry. Co. v. Halloren, 53 Tex. 46, 37 Am. Rep. 744; St. Louis & Southwestern Ry. Co. v. Gresham, 106 Tex. 452, 167 S. W. 724; St. Louis & S. F. Ry. Co. v. Boyer, 44 Tex. Civ. App. 311, 97 S. W. 1070. It is the rule that a request to give a special charge which is incorrect if sufficient to direct the attention of the trial judge to the issue requires the court to submit the issue by a correct charge. Olds Motor Co. v. Churchill, 175 S. W. 785, and authorities there cited. However, the rule does not apply where a case is submitted upon special issues, and' where the complaining party has failed to request the submission of a special issue to the jury upon which the special charge is asked. A failure to request the submission of a special issue is a license to the court to determine the issue without the aid of the jury. V. S. C. S. art. 1985; Panhandle & Santa Fé Ry. Co. v. Huckabee, 207 S. W. 329. Plaintiff in error did not request a special •issue, submitting to the jury whether the wreck was caused by the breaking of a rail from a latent defect.

There is another more potent reason, however, why the charge should1 not have been given, and that is the insufficiency of the evidence to require the court to submit it.

It is insisted under the second assignment that the judgment should be set aside, and the suit dismissed because the carrier was not made a party defendant. This question had been decided by this court in the case of Walker D. Hines, Director General, v. W. M. Collins, 227 S. W. 332, in an opinion not yet (officially)-reported. Section 31153/4j, U. S. Comp. St. 1918, Comp. St. Ann. Supp. 1919, provides that carriers, while under federal control, should be subject to all laws and liabilities as common carriers, etc., except in so far as such liability might be inconsistent with other provisions of the act, or any other act applicable to federal control, or with an order of the president; that suits might be brought by and against such carriers and judgment rendered in the same manner as before federal control, and that no defense should be made to such suit upon the ground that the carrier was an agent of the federal government. It is expressly provided, however, that—

‘‘No process, mesne or final, shall be levied against any property under such federal control.”

General order No. 50a, issued by the Director General, provides that suits based on causes of action growing out of control or operation by the Director General should be brought against the Director General, and not otherwise. The validity of this’ order has been upheld by some courts while others have held it to be in conflict with the provisions of th§ Act of Congress, referred to above. As said by Boyce, Justice, in the Collins Case, supra:

‘‘We do not think it important to determine in this particular instance whether the suit should, prior to the termination of federal control, have proceeded in the name1 of the carrier or Director General, as defendant. In either ease, the suit was in effect against the government, and there was no personal liability against the carrier.”

Since no process could be levied against any property of the carrier while under federal control, it would be a useless formality to require that the carrier be made a party. Section (g) 206 of the act of February 28, 1920 (41 Stat. 462), provides that no execution or process other than on a judgment recovered by the United States against a carrier shall be levied upon the property of any carrier where the cause of action, on account of which the judgmeht was obtained, grew out of the possession, use control, or operation of any railroad, or system of transportation by the President, under federal control. While the courts are not in perfect accord upon this question, we believe we are sustained by the weight of authority, and refer to the cases cited in the Collins Case, supra.

Under the third assignment it is insisted that the judgment should be reversed because Fred Thompson, one of the jurors, who had voted to give the plaintiff a large verdict, and while the jurors were discussing the question as to whether or not plaintiff was injured by accident, said he did not believe anything the witness testified on the part of the defendant, for the reason that they werfe railroad men and had to testify that way, and that a railroad man had told him that plaintiff was hurt as he claimed, and said juror further stated that he could give the name of the railroad man if they wanted to know; that this information had been imparted to him after he was selected and sworn as a juror. Upon the hearing of the motion for a new trial, the Witness Fred Thompson and four other jurors were called to testify. The evidence shows that Thompson made some such remark, but each of the four jurors stated in effect that he was not influenced by what Thompson had said in the jury room, and that' he had rendered his verdict in accordance with the evidence adduced upon the trial. It appears that the juror Thompson had favored a verdict in the sum of $5,000 before the railroad man had talked with him, and that he afterwards agreed to a verdict of $2,500. He states he did not consider what he had heard in arriving at his verdict, and .that it did not influence him. It does not appear from the record that the trial court has abused his discretion in overruling this ground of the motion.

Plaintiff in error insists by his fifth assignment that the verdict and judgment are contrary to and against the great preponderance of the evidence. The evidence is conflicting upon the fact of Parry’s injuries, some of the testimony tending strongly to show that he was not injured at all, but after a review of the record, we think the evidence is sufficient to sustain the verdict and judgment, and we are not warranted in setting them aside upon this ground. The judgment is therefore affirmed.