Gulf, Colorado & Santa Fe Railway Co. v. Shelton ( 1903 )

On the 30th of March, 1900, Shelton purchased from the agent of the railroad company at Gainesville, Texas, a ticket to Los Angeles, Cal., over that road to Purcell, I.T., thence over the Atchison, Topeka Santa Fe Railroad by way of Newton, Kan. At Purcell two of the cars belonging to the plaintiff in error were set out of the train, in one of which Shelton was seated. Upon arriving at Purcell, the station was properly announced and the passengers left this car, except Shelton and another man. The switching crew employed by the Atchison, Topeka Santa Fe Railway Company took charge of the train upon its arrival and started to take it into the yards for the purpose of dropping out the two cars. Upon discovering Shelton and the other man in the car, one of the crew who had charge of the train told them to get off the train or they would be left. The night was dark and the platform was poorly lighted, and when Shelton stepped off the train he fell and received his injuries. The switching crew that took charge of the train were employed by the Atchison, Topeka Santa Fe Railway Company to do the work of both companies in the yards at the place of connection, and did perform that work for both companies, being paid by the latter company.

The defendant railroad pleaded contributory negligence on the part of Shelton, and the court, among other things, charged the jury as follows: "The burden of proving that plaintiff was guilty of contributory negligence devolves upon the defendant." The railroad company asked the court to give the following charge: "You are instructed, at the request of the defendant, that while the burden is on the defendant to prove its defense of contributory negligence, that if it appears from the plaintiff's own evidence that in going back to sleep after being awakened and notified that Purcell was the next station, or that in jumping from the moving train in the dark, when he could not see where he was jumping, he did not exercise the care and prudence that a person of ordinary and reasonable care would exercise under like circumstances, you will return a verdict for the defendant."

Judgment was entered against the railroad company, from which it appealed and presented the following assignments of error:

"10. The court erred in charging the jury as follows: `The burden of proving that plaintiff was guilty of contributory negligence devolves upon the defendant.'

"16. The court erred in refusing to give to the jury defendant's ninth special instruction, which properly instructed the jury with respect to the burden of proof on the question of contributory negligence.

"Proposition. — Plaintiff's own evidence disclosed his contributory negligence, and the burden of proof should properly have been fixed by the trial court upon the plaintiff."

The application for writ of error presented the question in the following form: "The honorable Court of Civil Appeals erred in overruling the tenth and sixteenth assignments of error, which complained of the charge of the trial court, `burden of proving contributory negligence devolves upon defendant,' and of the refusal to give defendants special charge number 9, because appellee's own testimony tended strongly to show — if it did not completely establish — his contributory negligence as being the proximate cause of the injury; and on this state of the evidence the burden of proof was improperly placed upon the defendant by the trial court, as such charge was calculated to cause the jury to believe that in considering this issue they were not entitled to consider the evidence offered by plaintiff, and herein the Court of Civil Appeals erred in holding that appellant's charge number 9 was properly refused."

We have stated only such facts as are necessary to understand the questions decided by this court.

A writ of error was granted because this court was of opinion under the facts the trial court erred in charging the jury that the burden of proving contributory negligence on the part of the plaintiff rested upon the railroad company. In this court the proposition is presented that the charge was calculated to lead the jury to consider only the evidence offered by the defendant on the subject of contributory negligence, while in the Court of Civil Appeals the proposition was that the error consisted in misdirecting the jury as to the burden of proof. The defendant in error objects to the consideration of the assignment as here presented, because it was not so assigned and presented to the Court of Civil Appeals.

We are of opinion there is a marked difference in the question presented to the Court of Civil Appeals and that presented to this court. The object in requiring assignments to be made accompanied by propositions of law is to direct the mind of the appellate court to the very point upon which it is claimed the trial court committed the error, and when a party has thus presented his case and specified his objections to the ruling of the trial court, he thereby waives any other objection which might have been presented under that assignment of error. Houston, etc., Railway Co. v. Rutherford, 94 Tex. 518. In the case cited this court said: "As specific objections were made to the instruction in the brief, those not so specified were waived and this court can only review the action of the Court of Civil Appeals upon the point properly presented to it." The Court of Civil Appeals could not have understood that the plaintiff in error was, by the proposition contained in its brief, attempting to raise the same question that is presented in the application. We therefore conclude that we can not review the action of the Court of Civil Appeals under the assignments presented in the application.

It is contended by the plaintiff in error that the persons who had charge of the train at the time Shelton was injured were the servants of the Atchison, Topeka Santa Fe Railway Company, for whose acts plaintiff in error is not liable. The facts show without dispute that the switching crew which had charge of the train, one member of which gave the direction to the plaintiff to leave the car, were employed by the Atchison, Topeka Santa Fe Railway Company; that they performed the yard work for both companies at the point of connection at Purcell and were paid by the company which employed them, the plaintiff in error paying to the other company one-half of the cost. There was no evidence of the terms of the contract between the two railroads concerning their joint business at that station. Under this state of facts the men of the switching crew were equally the servants of both companies and the plaintiff in error was liable for their acts to the same extent as if they had been employed by it. Gulf, etc., Railway Co. v. Dorsey, 66 Tex. 148.

We have examined all of the assignments of error presented in the application and find no error which requires a reversal of the judgment. It is therefore ordered, that the judgment of the District Court and of the Court of Civil Appeals be in all things affirmed.

Affirmed.