International & Great Northern Railway Co. v. Douglas , 7 Tex. Civ. App. 554 ( 1894 )

Appellee sued to recover damages for injuries alleged to have been caused by negligence of defendant. The alleged negligence consisted in a failure of defendant to keep a crossing over the track in proper repair, and in leaving one of its engines standing with its pilot partly on such crossing, whereby the horses hitched to defendant's wagon, as he was passing over such crossing, were scared by the engine, and by stepping in a hole in such crossing, were caused to run away and seriously hurt plaintiff. The defense was a denial of plaintiff's allegations, and contributory negligence on his part. Verdict and judgment for plaintiff for $2000.

One of the assignments attacks the verdict of the jury, on the ground that the evidence showed plaintiff to have been guilty of contributory negligence. This was not properly assigned as a ground for a new trial in the court below. The only grounds of the motion for new trial which were addressed to the evidence, were as follows: "The verdict is contrary to and not supported by the evidence. The verdict is contrary to the law as given in the charge of the court." It was proper to disregard this part of the motion, as it was made in disregard of the rules. Rule 68 for District Courts. White v. Wadlington, 78 Tex. 159.

When action of the court below, upon the effect of the evidence upon a particular point in the case, by motion for new trial, has not been properly invoked, its ruling on the motion will not be reviewed in the appellate court. Foster v. Smith, 1 Tex. 72; Cotton v. The State, 29 Tex. 187; Hart v. Ware,8 Tex. 115.

We will not, therefore, in this state of the record, undertake to review the evidence for the purpose of determining whether or not it sustains the verdict. Hence, no conclusions of fact are deemed essential.

The substance of the first special charge asked by defendant was contained in the charge of the court. That charge, upon the subject of contributory negligence, was as full and as specific as defendant had the right to demand.

The third special charge asked by defendant was as follows: "Defendant asks the court to instruct the jury, that if there was room enough on said crossing for wagons to cross, if the engine had not been there, and the same was reasonably safe in the absence of said engine; or if there was room to cross with said engine there, and plaintiff could safely have crossed if his team had not become frightened and shied, and the shying of his team threw them into a hole that they would not otherwise have gotten into, then he can not recover."

This instruction was properly refused. The presence of the engine with its pilot upon the crossing was a fact for the jury to consider in determining the issues. It might have been true that there would have been room to cross if the engine had not been there, and still it would not follow that plaintiff could not recover. The charge submitted an irrelevant hypothesis, and made plaintiff's right depend on its determination. Everything supposed in the charge might have existed, and yet defendant may have been guilty of the negligence charged against it.

The charge is not open to the objection made in the fourth and fifth assignments. The instructions to which objection is made are as follows:

"Reasonable or ordinary care, as hereinafter used, means that degree of care and caution which an ordinarily prudent man would exercise under like circumstances. It was the duty of defendant company to use reasonable care and diligence to maintain and keep the bridge on the crossing where plaintiff was injured in such repair that any one might cross in safety.

"The defendant company was not required to maintain the bridge in such repair as would preclude the possibility of injury to those crossing it in wagons, or in other words, to insure all persons passing over its tracks in wagons from injuries, but only to use the degree of care above defined.

"The failure to use such reasonable care to keep and maintain the bridge or crossing in a safe condition for the passage of wagons would render defendant company liable to damages sustained by a person crossing the same, so far as such damages were the proximate and natural result of the defective condition of the bridge, provided such person were not cut off from his claim for damages by reason of his own contributory negligence."

These instructions, taken together, do not require that the crossing be kept in safe condition, but only that defendant exercise the proper degree of care and keep it in as safe condition as, with such care, could be done."

The charge also negatives the idea that defendant was an insurer of safety.

There was no error in the charge complained of in the seventh assignment. It was proper under the pleadings and evidence to submit to the jury the question whether or not the injury resulted from the defective crossing alone, or from that in connection with the presence of the engine.

Our conclusion is, that the judgment should be affirmed.

Affirmed.

Writ of error refused by the Supreme Court, November 30, 1894.