Hines v. Hodges , 1922 Tex. App. LEXIS 433 ( 1922 )

CONNER, C. J.

Appellee sued to recover damages for personal injuries received at a public railroad crossing in or near Iowa Park, in Wichita county. He alleged that the employés of the railroad company at the time were operating and moving a string of cars along a track over the public crossing in question, which, as the plaintiff was attempting to cross, ran into his automobile, injuring the same to the extent of $350, and also injuring the plaintiff’s shoulder, arm and back, thereby inflicting permanent injuries, with the consequent loss of time, for all of which he claims damages in the sum of $5,000.

As grounds for the recovery, he alleged that the crossing was obscured by a string of cars on either side, and that the employés of the train were negligent in failing to give warning of the approach of the train by blowing the whistle or ringing the bell, and that defendant had placed no watchman at the crossing.

The defendant answered with a general denial, and pleaded contributory negligence, in that the plaintiff had failed to stop, look, and listen for the approaching train; that he was driving on the wrong side of the street, and had failed to use reasonable care in discovering the approaching train before the collision, which it was alleged he could have done by the use of ordinary care in time to have avoided any injury.

Upon the answers of the jury to special issues submitted to them, judgment was rendered in favor of the plaintiff for the sum of $1,500, and the defendant has duly prosecuted this appeal.

The fifth clause of the court’s charge is as follows:

“It was the duty of the defendant and its agents and servants in charge of the train to exercise ordinary care to prevent any accident and consequent injury to persons and vehicles crossing the tracks of the defendant at Iowa Park. The care required is such as a reasonably prudent person would • exercise under the same or similar circumstances, and you are charged that, if you find from the evidence that the defendant’s agents and servants in charge of said train failed to exercise such ordinary care in either or any of the particulars charged in the plaintiff’s petition, then you should answer special issue No. 1 in the affirmative. If you fail to so find, you should answer this issue in the negative. The plaintiff at the time of the injury charged was required likewise to exercise ordinary care for His own personal safety at the railway crossing — that is, such care as a reasonably prudent person would have exercised under the same or similar circumstances — and if you find and believe from the evidence that he failed to exercise such care in any or all of the particulars charged in the defendant’s answer, and that such failure on his part was a proximate cause of his injury, and contributed thereto, then you should answer special issue No. 2 in the affirmative. If you fail to so find, you should answer it in the negative.”

After which follows, among others, special issue No. 1, reading as follows:

“Were the defendant’s agents and servants guilty of negligence in the operation of the train or the condition of the crossing where the accident occurred?”

To which the jury answered “Yes.”

[1] Among others, the defendant requested the following special instruction, which the court refused, and to the refusal of which error is assigned:

“You are charged that it. was not the duty of .the defendant to- keep a watchman at the crossing in question unless such crossing was peculiarly or extraordinarily dangerous, and, unless you so find, you will not find the defendant guilty .of negligence in this respect.”

We are of the opinion that the defendant was, under the circumstances, entitled to have this charge submitted to the jury. A distinct ground of negligence upon which plaintiff relied for recovery was a failure of the defendant to keep a watchman at the crossing in question, and, by a reading of special issue No. 1 in connection with the fifth paragraph of the court’s charge, it may be seen that the jury were given the opportunity at least to consider and to affirm negligence on the part of the railroad company because of the failure to keep a watchman at the crossing. The evidence shows without dispute that no watchman in fact had been placed at this crossing, and it therefore became important to the defendant that the jury receive a proper instruction embodying the law relating to the subject.

* This court, in discussing the duties of railroad companies relative to crossings in the case of C., R. I. & G. Ry. Co. v. Shockley (Tex. Civ. App.) 214 S. W. 716, had occasion to say this:

“The testimony introduced upon that issue is referred to in the opinion in the other case, but we are of the opinion that upon another trial the court should, in the charge submitting that issue, embody the idea that the duty to keep a watchman at a public crossing is not applicable except when such crossings are peculiarly or extraordinarily dangerous.”

It was said upon the subject in Galveston-Houston Electric Ry. Co. v. Patella (Tex. Civ. App.) 222 S. W. 615, that:

“It seems to be settled by the authorities that railroad companies and street car companies can only be held negligent for failure to keep a watchman or maintain other warning devices at crossings where the circumstances surrounding the same are such as to make such crossing extra hazardous or extra dangerous.”

See, also, Tisdale v. Panhandle & S. F. Ry. Co. (Tex. Com. App.) 228 S. W. 133.

[2] We have no statute which requires railroad companies to station watchmen at crossings of the kind in question; nevertheless under proper circumstances, the question of whether it is the duty of the railroad company to keep a watchman at a given crossing is one for the jury; but nothing has been pointed out from the evidence in this case which renders the specially requested charge unimportant. The number of inhabitants of Iowa Park is not shown, nor is it shown that the crossing was in a populated part of Iowa Park, nor is it shown that there was continuous switching over the crossing, and the plaintiff testified that from the crossing it was some 300 feet to the main street going through the town. True, it was shown that an open view was obstructed by some stationary cars, and it was further shown that an actual or apparent congestion existed by certain passing wagons and teams which prompted the plaintiff to take the left-hand side of the road, but it was not shown how long the cars had been stationed so as to obstruct the view nor that the congested condition of the crossing, if any, was other than momentary; for all that appears in the evidence, such conditions may have been wholly temporary, and the testimony in behalf of the defendant was to the effect that, not only was the bell kept ringing, but also that a brakeman was on the end of the car as it approached,' and gave a warning. So that, considering the circumstances as a whole, it cannot be said, we think, as a matter of law, that the crossing was extra hazardous or dangerous. At most, the question was one for the jury, to be submitted under a proper instruction explaining the law relating to the subject. To this, we think, the defendant was undoubtedly entitled, and that, as already stated, the court •erred in refusing the special instruction, and that for such error the judgment must be reversed, and the cause remanded.

[3] In view of the reversal, we need not discuss the ruling of the court upon appellant’s motion for continuance, but, to avoid error on another trial, we will briefly notice several other questions that have been presented. It is insisted that there was error in the fifth paragraph of the court’s charge, in that it referred the jury to the petition for the allegations of negligence. The contention is that the charge should have embodied the particular issues of negligence to be submitted, and not left the jury to roam at will amongst the allegations of the pleadings. It has been several times determined that such practice is objectionable. To so do may result in the submission to the jury of an issue in support of which there is no evidence or insufficient evidence. So that, undoubtedly, the better practice is for the charge of the court to distinctly submit the particular issues of negligence alleged, and which, in the judgment of the court, the evidence is sufficient to so authorize. See Adams & Washam v. Southern Traction Co. (Tex. Civ. App.) 188 S. W. 275; Panhandle & S. F. Ry. Co. v. Morrison (Tex. Civ. App.) 191 S. W. 138.

[4] The charge also presented the several grounds of the defendant’s plea of contributory negligence by reference to the defendant’s answer, and what we have said in disposing of the charge relating to the issues of negligence as presented by the plaintiff also applies to this method of presenting the is■sue of contributory negligence, but these objections can, and doubtless will, be readily corrected upon another trial, and we ñee'd not, therefore, further discuss them.

The defendant also assigns error to the action of the court in refusing some 11 special instructions, the submission of which was requested. These instructions relate to the several grounds upon which the defendant’s plea' of contributory negligence is based. The several grounds of negligence were in fact submitted in the form of special issues, as requested by the defendant. But the special instructions to the refusal of which objection is made are explanatory of such special issues. To illustrate, we will give one of the special instructions which the court refused, to wit:

“You are instructed that, if you believe from the evidence that the said J. 0. Hodges approached said crossing on the occasion of his injuries, if any, without looking or listening for the approach of a train, and you further believe from the evidence that by looking or listening he would have seen or heard said train in timé to have prevented Ms injuries, if any, and you further believe that a man of ordinary prudence would, under the same or similar circumstances, have looked or listened for the approach of a train, then you are instructed to answer issue No. 2 ‘Yes,’ and this would be true even though you may believe from the evidence that there were no whistles or bells or other signals given to announce the approach of the train, and that the train was being operated in a negligent manner.”

It may be true, as we are inclined to hold, that the defendant is entitled to have an affirmative presentation of his defenses, even in cases submitted upon special issues, but we find no error in the rulings indicated last above. The court in his charge instructed the jury that the plaintiff was required to exercise at the crossing ordinary care for his own personal safety, and that, if the jury found from the evidence that he failed to exercise such care “in any or all of the particulars charged in the defendant’s answer,” and that such failure was a proximate cause of his injury, and contributed thereto, then they should' answer special issue No. 2 in the affirmative, issue No. 2 being an inquiry as to whether the plaintiff had been guilty of contributory negligence. As already stated, the court submitted some ten or more special issues requested by the defendant. We will illustrate all by quoting one, to wit:

“You will please answer the following issues: First. Bearing in mind the charges on contributory negligence, find whether or not the plaintiff ‘ was guilty of contributory negligence in driving his automobile at the time and just prior to the accident at the rate of speed that he did drive the same. Answer ‘Yes’ or ‘No.’ ”

[5, 6] The presentation of the defense of contributory negligence, therefore, certainly seems to be all that the defendant had a right to ask in any view of the case. It would certainly be a great extension of the rule announced in the McGlamory Case, 89 Tex. 639, 35 S. W. 1058, and other cases following it, to hold that a defendant may submit each of several grounds upon which its plea of contributory negligence is based, each ground referring with approval to the court’s definition of contributory negligence, and then, in addition thereto, have special explanatory charges given relating to the several 'grounds constituting the basis of the plea. To thus have done in the present case would have been' to unduly' emphasize defendant’s plea. The plea in fact was but single. It was a plea of contributory negligence, and the grounds alleged were only evidence relied upon as supporting the plea. And, while the defendant would be entitled, we think, upon a proper request, to group the several grounds relied upon as establishing his plea, and which there was evidence tending to support in an affirmative form,' he cannot require the- trial court, to emphasize by special charge each separate fact constituting the group. Fort Worth Belt Ry. Co. v. Johnson, 59 Tex. Civ. App. 105, 125 S. W. 388.

[7] A further objection to the court’s charge is that the jury were authorized thereby to assess damages because of plaintiff’s incapacity to earn wages in the future, for the reason that, such incapacity was not alleged. The plaintiff alleged that he had “been permanently injured” as a result of the accident, and had “suffered great mental anguish and pain as a result” of his injuries, to his damage in the amount stated in the petition. While-we are inclined to the view that the general allegations of the plaintiff’s petition in this respect were, in the absence of any special exception or objection, broad enough to authorize the admission of the evidence and the submission' of the issue, yet the objections may be readily obviated by an amendment on another trial, and we will not elaborate the subject.

For the error of the court, however, first discussed, it is ordered that the judgment be reversed, and the cause remanded for a new trial.

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