Texas & P. Ry. Co. v. Williams , 1917 Tex. App. LEXIS 638 ( 1917 )

WILLSON, O. J.

(after stating the facts as above). The jury were not authorized by the charge to find for appellee, unless they did so in accordance with instructions as follows:

“If you believe from the evidence that on or about the 6th day of November, 1915, as alleged in plaintiff’s petition, Ike Williams, the plaintiff, was engaged in the operation of a planing machine for the defendant, and that the equipment of said machine was defective in not being equipped with a slow feed, and if you believe that it was negligence on the part of defendant to furnish the machine to plaintiff to do the work then at hand in such defective condition, if it was defective, and that such negligence, if any, was the proximate cause of the injury to plaintiff, then you will find for the plaintiff.”

In support of its first assignment appellant insists that the instructions just set out were erroneous, because it appeared it asserts that, if it was guilty of negligence in failing to equip the machine with “a slow feed,” its negligence was a remote, and not a proximate, cause of the injury to appellee. We do not feel called upon to determine whether it so appeared or not; for, if it did so appear, and if the instructions therefore were erroneous, we think appellant should not be heard to complain of the error. It will he noted that the .jury were authorized by the instructions complained of to find for appellee only in the event they believed that appellant was guilty of negligence in failing to equip the machine with a slow feed, and further believed that its negligence in that respect was the proximate cause of the injury to him. Appellant, in effect, asked the court to so instruct the jury when it requested a charge (refused by the court) as follows:

“If you believe that the foreman was negligent in having the machine run with rapid feed and thereby caused it to choke up and necessitated taking off the band, and that in putting the band on the plaintiff was injured, then you will find for the plaintiff, if you believe that the clogged condition of the machine was the proximate cause of plaintiff being injured by the band striking Ms leg.”

The charge requested, like the one given, though in different language, predicated negligence on the failure of appellant to equip the machine with a slow feed, and, like the one given, authorized a finding that such negligence was the proximate cause of the injury to appellee. By the charge refused the clogged condition of the machine was referable only to the rapid rate of speed at which the machine was operated. So it in effect was a request ‘by appellant to submit to the jury the issue the court did submit to it as to whether the negligence of appellant in failing to equip the machine with a slow feed was the proximate cause of the injury to appellee or not. Appellant, we think, is in the attitude of having invited the error, if it was one, and under a well-settled rule is not entitled to here urge the error as a reason why the judgment should be reversed. Railway Co. v. Sein, 89 Tex. 63, 33 S. W. 215, 558; Oil Co. v. Hanna (Sup.) 173 S. W. 644; Railway Co. v. Flanders (Sup.) 179 S. W. 263; Sanford v. Railway Co., 143 S. W. 329; Railway Co. v. Murray, 132 S. W. 496; Manufacturing Co. v. O’Neil, 57 Tex. Civ. App. 568, 122 S. W. 900. In the Hanna Case Chief Justice Brown quoted as a correct statement of the rule the following from the opinion in the Sein Case:

“The question now before the court is, in substance, if in the course of a trial counsel requests the court to give an instruction to the jury, which is refused, but which in whole or in part is embraced in the charge of the court, can the counsel, or the party for whom he acts question the correctness of the charge given by the court in so far as it conforms to the request made? This question has often been before appellate courts, and has uniformly, so far as we are able to find, been held against the right 'of a party or Ms counsel, upon appeal, to call in question a ruling of the trial court which was •made at Ms suggestion; and it has been generally held that, when a charge requested, but refused, was embraced in the general charge of the court, any error arising therefrom could not be questioned by the party who requested the charge.”

In the Flanders Case the Supreme Court held, quoting the syllabus:

“In 'a railroad switchman’s action for injuries defendant could not complain of the submission, as a ground of recovery, of its negligence in permitting an engine with a brilliant headlight to stand in the yards, though this was not the proximate cause of the injury, where its own requested charges called for a determination of the same issue of fact.”

Most of the other assignments in the brief are predicated, as the first one is, on the claim that the failure of appellant to equip the machine with a slow feed, if negligence, was not the proximate cause of the injury. They are all overruled, as are the seventh, eighth, ninth, and tenth, in which complaint is made of the refusal of the court to give to the jury special charges therein referred to requested by appellant.

The fifteenth assignment, by which the verdict is attacked on the ground that it is excessive, should, we think, he sustained. Appellee was 62 years of age at the time his leg was broken, and was earning about $100 per month. While both the large and the small bones of his leg between the knee and ankle were broken, the broken parts of the large bone had properly united, and the testimony indicated that the union between the broken parts of the small bone, while imperfect at the time of the trial, might in the course of time become so near perfect as to restore to appellee the effective use of the leg. The testimony also indicated that the most serious consequences to appellee of the injury probably would be a permanent slight shortening of his leg. The judgment, we think, is excessive in the sum of $7,500. If a remittitur of that amount is filed by ap-pellee with the clerk of this' court, within 15 days from this date, the judgment will he reformed and affirmed for $10,000. Otherwise it will be reversed, and the cause will be remanded for a new trial.