I. G. N. R. R. Co. v. Wray , 43 Tex. Civ. App. 380 ( 1906 )

This is an appeal from a judgment of $10,000 recovered by appellee for personal injuries alleged to have been sustained by reason of appellant's negligence.

Conclusions of Fact. — The evidence is sufficient to sustain the following conclusions of fact: (1) On October the 3d 1903, the appellee, John Wray, while in the employ of appellant in the capacity of a switch engineer at Spring, Texas, and in the discharge of the duties of his employment, was ordered by his foreman to run his engine from the roundhouse onto the main line of defendant's railroad, at a time when the foreman, by the exercise of ordinary care, should have known that a collision between appellee's engine and a passenger train would likely occur if the order was obeyed by appellee. (2) Also, that appellee, in running his engine as directed by his foreman, was subject to the orders and direction of appellant's yard switchman, Rogan, who, by signals directed appellee to run his engine onto the main track of appellant's road at a time when said switchman by the exercise of ordinary care might have known train No. 7 was about to arrive at Spring and that a collision between said train and appellee's engine would probably occur if appellee, in obedience to his orders and signals, ran his engine on the main line of road. (3) That the employes of appellant operating the engine drawing train No. 7 in entering Spring failed to have said train under control, as required by the rules of appellant, and failed to keep a watchout for the purpose of preventing a collision with appellee's engine. (4) That the orders, signals and omissions of appellant's servants stated in the foregoing findings were, in every of such findings, acts of negligence chargeable to appellant. (5) That such acts of negligence, operating singly or concurring, were, without any contributory negligence on the part of appellee, the direct cause of a collision between train No. 7 and appellee's engine, by reason of which appellee sustained serious and permanent physical injuries to his damage in the amount found by the jury.

Conclusions of Law. — 1. Our conclusions of fact dispose of the first assignment of error, which complains of the court's refusal to peremptorily instruct a verdict for appellant, at its request. It is too well settled to require discussion that negligence becomes a question of law, only when the act causing damage to another is in violation of statute, or when the undisputed evidence admits of the inference only, that the commission of the act in question was negligence. (Lee v. International G. N. Ry., 89 Tex. 583; Bonn v. Galveston, H. S. A. Ry., 82 S.W. Rep., 808; Virginia Portland Cement Co. v. Luck, 49 S.W. Rep., 582.) The appellant was charged with knowledge of the whereabouts of its trains, for it was its bounden duty to know where they were. The plaintiff was charged with no such knowledge or duty. He had the right to rely and act upon information given him by the defendant through its officers or agents ordering and directing his work. With the knowledge imputed to it by the law, of the whereabouts of train No. 7, the appellant, through its agent, who was appellee's vice principal, ordered appellee to take his engine from the roundhouse and run it onto the main track where a collision between it and train No. 7, would almost inevitably occur. This order was followed by signals from the switchman, which it was appellee's duty to take and obey, given, almost at the point and time of the collision, to appellee to run his engine on the main track. Orders and signals more pregnant with danger, of which appellee was utterly oblivious, can hardly be conceived. And yet, because appellee, who relied upon appellant's discharging its duty not to place him in a position of peril, failed to discover the proximity of train No. 7 to the place on the main track, where the collision occurred, it is seriously contended by appellant that he was guilty of contributory negligence as a matter of law. Where an act is done by one in obedience to an order of his foreman, the law will not declare the act of obedience negligence per se, unless the danger of obeying the order was so obvious and glaring from the servant's standpoint at the time he undertook to obey it that no prudent man would have undertaken it, but will leave it to the jury to say whether he ought to have obeyed it or not. (Galveston, H. S. A. Ry. v. Puente, 70 S.W. Rep., 362; San Antonio A. P. Ry. v. Stevens, 83 S.W. Rep., 235; Henrietta Coal Co. v. Campbell,211 Ill. 216, 71 N.E. Rep., 863; Chicago E. I. R. Co. v. Heerey, 68 N.E. Rep., 74; Western Stone Co. v. Musical, 196 Ill. 382, 63 N.E. Rep., 664, 89 Am. St. Rep., 325.) As the evidence shows that train No. 7 came up from behind the appellee, and the point of collision was where the main track intersects the track on which his engine was at an acute angle and that he was watching and taking signals from the switchman in front of him, we can not perceive how he can be held guilty of negligenceper se in not discovering the train in time to prevent the collision. Nor can it be said that his failure to lookout for the train on the main track while he was running his engine over the short intervening space between the roundhouse and coal car standing on a track between the one he was on and the main track was negligence as a matter of law proximately contributing to the collision.

2. The second assignment of error complains of the court's submitting as issues of negligence, on the part of appellant, the order of appellee's foreman and the signals of his switchman directing him to run his engine onto the main track, upon the ground that such acts, even if negligent, were not the proximate cause of the collision, appellee's failure to keep a watchout for trains on the main track being an intervening and the efficient cause. This assignment is simply a rehash, in a different form, of the one just considered. Unless it can be said that the evidence shows that appellee was guilty of negligence as a matter of law in failing to keep a lookout for train No. 7, and that such failure was the proximate cause of the collision, such failure can not be said to be an intervening cause which relegates all others and is of itself the efficient cause of the accident. Therefore, this assignment is disposed of in what we have said in passing upon the other.

3. The third assignment of error is directed against that part of the court's charge which submits to the jury the issues as to whether appellant's servants operating train No. 7 failed to have said train under control, or to keep a lookout, and, in event the jury should find they failed in either, or both, to find whether such failure was negligence, and, if negligence, whether it was the proximate cause of the collision, the contention being that the undisputed evidence shows that such servants were not guilty of either of such alleged acts of negligence. We do not think that no other conclusion than that contended for can be deduced from the evidence. Though the servants operating said train testified that the train was under full control, that is, its speed did not exceed six miles an hour, the jury may have, from the physical facts shown by the collision, disbelieved them. For when the effects of the force of the impact is considered, it may be concluded that such effects could not have been produced by a train running at no greater speed than six miles an hour. Though the servants operating the train testified that they did keep a lookout, this testimony may not have been believed, from the fact that appellee's engine was not seen by any of them until run into by their train. The charge complained of by this assignment is correct as far as it goes, and if appellant thought it was not full enough, or omitted anything it wished presented in connection with it, a special charge should have been prepared and requested by it correcting such supposed defects.

4. The fourth, fifth and sixth assignments of error, which complain of the court's failure to give certain special charges requested by appellant upon the issue of contributory negligence, are overruled because, upon such issue, the court, in its main charge, fully and correctly instructed the jury as follows: "You are further instructed that if you believe from the evidence, that plaintiff failed to exercise ordinary care to observe the situation about him and discover the approaching train with which his engine collided in time to avoid the collision, and you further believe that by the use of ordinary care he could have observed said train in time to have avoided the collision, and that his failure to do so was negligence which, in any degree, contributed to his injury, then he would be guilty of contributory negligence as a matter of law; and if you so believe, you must return a verdict for defendant; and this is so, although you may believe that any or all the other employes in question were also guilty of negligence concurring with his to produce the injury." Besides, special charges Nos. 5 and 6, involved in these assignments, are too general, in that they make any act of negligence on the part of appellee, contributory to his injury, a defense to his action. Whereas appellant only pleaded his failure "to notice what was going on about him, and running his engine right in front of another engine on defendant's road in full view of him in broad daylight." A charge on contributory negligence, like a charge on any other character of negligence, should be confined to the specific acts of negligence pleaded and should never be so general as to include the submission of any other acts of negligence.

5. On the measure of damages, the court instructed the jury as follows: "If under the foregoing instructions you find for plaintiff, then in estimating his damages you may take into consideration his time lost, if any, the impairment of his capacity to labor and earn money in the future, if any, his mental and physical suffering, present and future, if any, and in your dispassionate judgment allow him such a sum as will fairly compensate him insofar as the evidence may have shown you he is entitled to damages in these respects." This is objected to by appellant upon the ground that it allows double damages. We are unable to place such a construction upon it. A fair compensation for injuries sustained is all the damage the charge permits him to recover. In estimating it the jury are allowed to take into consideration certain well-known elements of damages, specified in the charge. No one of these elements includes or runs into any other; the charge does not repeat any one of these elements; nor allow double recovery on a single one of them, nor anything more than just compensation.

6. What we have said in considering previous assignments disposes of all others adversely to appellant.

The judgment is affirmed.

Affirmed.

Writ of error refused.