St. Louis Southwestern Ry. Co. of Texas v. Pool ( 1910 )

TALBOT, J.

This suit was instituted by the appellee, Pool, against the appellant railway company to recover damages for personal injuries sustained by him through the negligence of appellant’s servants. The defenses pleaded were a general denial and contributory negligence. A jury trial resulted in a verdict and judgment in favor of the plaintiff for $1,000, and the defendant appealed.

The material facts are as follows: On the 13th day of March, 1909, plaintiff was. traveling in his buggy along the main street and thoroughfare of the town of Mt. Calm, in Hill county, Tex. Mt. Calm, on the date mentioned, was an incorporated town, and had in force, an ordinance prohibiting the obstruction or blockade of its street crossings by railway trains for more than five minutes. The street upon which the plaintiff was traveling was crossed by the railroad -tracks of the defendant, and, to reach his destination, it became necessary for the •plaihtiff to cross said tracks at this point. There were two tracks across the street — ■ the main line track and a switch track. ■These tracks were about 30 yards apart. As plaintiff approached the crossing, there was standing o.n the main line track a freight train' of .defendant, which extended entirely across the street and completely obstructed the same, so that plaintiff and others could not proceed along the street and across defendant’s. tracks. Plaintiff drove his horse and buggy in which he was riding across the switch track, and stopped to await the removal of the train from across the street. While so situated, another freight train of 'the defendant came up behind plaintiff on the switch track, and caused his horse to become frightened, and to back, plunge, and cross the switch track in front of said moving train. As the horse crossed the switch track, plaintiff’s buggy was struck by the engine drawing the train, and threw or knocked plaintiff out of his buggy; and severely injured him. At this time defendant’s freight train was still standing on its main line track, and had been so standing for about 15 minutes. Defendant was guilty of negligence in obstructing the street crossing for the length of time and in the manner stated, and in causing its train to move along the switch track and collide with plaintiff’s buggy at the time and in the manner in which those things were done. The plaintiff was not guilty of contributory negligence, and as a result of the defendant’s negligence he sustained damages in the amount awarded by the verdict of the jury.

The court charged .the jury that if “the defendant company, its servants, agents or employes, had caused a freight train to stop and to be left standing along its main track and across said street or thoroughfare upon which plaintiff was traveling, and the plaintiff, in the exercise of due care for his own safety, had crossed the side track of the defendant, and found his progress impeded by the said freight train standing upon said main track, and that the defendant’s agents, servants and employés, run an extra train upon and along the said side track and at the time they so run the same, if they did do so, they, the servants of defendant controlling said extra train,, knew that the plaintiff was- with his horse and buggy between the said side track and the said freight train standing on the main track, and at said time and place and after they had seen the plaintiff, if they did see him, caused and permitted said extra train to run along said side track up to or past the place where said plaintiff was with his said horse and buggy, and caused plaintiff’s horse to back and to rear and to plunge and to cross said side track, and said locomotive collided with his said buggy and knocked the plaintiff therefrom and injured him as alleged, and that said acts and conduct on the part of the defendant’s agents, servants, and employés was negligence, as that term is hereinbefore defined, and that such injuries sustained by plaintiff, .if any, were the direct and proximate result of the negligence of the defendant’s servants, agents, or employés, if they were negligent, you will return a verdict in favor of the plaintiff.” This charge is objected to on the ground that it erroneously submits .to the jury the issue as to whether or not the stopping of the defendant’s train across Main street was the proximate cause of plaintiff’s injuries; the proposition being, in effect, that the undisputed evidence showed that the stopping of said train across the street was in no manner the proximate cause of plaintiff’s injuries, and therefore the court erred in submitting an issue not raised by the evidence. We do not think the objection is well -taken/ The’ evidence did not in our opinion conclusively establish that the stopping and holding of defendant’s train across the street <upon which the plaintiff was traveling was “in no manner the proximate cause” of plaintiff’s injuries. On the contrary, we believe that it was very clearly shown that such action on the part of the railway company was at least a concurring proximate cause of the accident and of its consequences to the plaintiff. The evidence is ample to show that the street crossing was blocked by defendant’s train, in violation of an ordinance of the city of Mt. Calm, for more than five minutes; that plaintiff was forced to stop on account of such obstruction between the two railroad tracks, and in consequence thereof and of the negligence of defendant’s servants in running the freight train on the side track,, frightening plaintiff’s horse, he received the injuries of which he complains.

The second assignment complains of the following portion of the court’s general charge: “If yqu believe that the plaintiff saw said train approaching on said side track, or that he could have seen the same before he crossed said side track if he had looked and listened, and you believe that he failed to look and listen and you further believe that in such failure, if any, he was guilty of negligence as that term is herein-before defined, and you believe that under the conditions that surrounded hijn at the time he was guilty of negligence in crossing said side track and that the negligence of the plaintiff, if you believe he was negligent in any or all of the respects named, directly or proximately contributed to his injuries, if he was injured, you will return a verdict in favor of the defendant.” The. objection urged to this portion of the court’s charge is that it is more onerous and imposes a greater burden upon the defendant than the law requires, in that it required the jury to believe before they were authorized to find for the defendant that plaintiff was negligent, not only in not looking, but also in not listening and also in crossing the side track; “whereas, the defendant was entitled to a verdict if the jury believed that the plaintiff was guilty of negligence in failing to look or to listen or in crossing said side track.”. In other words, the proposition is that in designating several acts of negligence on the part of ■ plaintiff, any one of which would be sufficient to constitute contributory negligence, it is error for the court to use the conjunctive form in stating the facts in question, instead of the disjunctive, thereby placing a greater burden upon the defendant than is required, by law. The language of the charge complained of is a portion of the fifth paragraph of the court’s charge, and not a part of the sixth paragraph as stated in the brief.- The entire paragraph is as follows: “Even though you. may believe that the defendant’s > agents; servants, and employés were negligent, as that term is hereinbefore defined, yet if you should believe from the evidence that the plaintiff drove his hoi;se and buggy across defendant’s side track in front of the engine, which was then moving on said side track, if said engine was so moving, to where the said train was standing on the main track of the defendant, and that in so doing the plaintiff was guilty of negligence as that term is hereinbefore defined, or if plaintiff dropped one of his lines by which his horse was controlled and thereby lost control of said horse, which had become frightened and you further believe that in so doing, he was guilty of negligence, if he did do so, as that term is hereinbefore defined, and you believe that under the conditions that surrounded him at the time he was guilty of negligence in crossing said side track, and that the negligence of the plaintiff, if you believe that he was negligent in any or all of the respects named, directly or proximately contributed to his injuries, if he was injured, you will return a verdict in favor of the defendant.” It will be noticed that in the beginning of this paragraph of the charge the act of driving the horse and buggy across defendant’s side track is submitted as a distinct act of negligence, which will authorize a verdict for defendant, and then follows the submission of issue of negligence in failing to look and listen; the paragraph concluding with the instruction that if the jury believed the plaintiff, under the conditions that surrounded him at the time of the accident, was guilty of negligence in crossing the side track, and, in effect, if they believed he was negligent in any or all of the respects named, and the same directly or proximately contributed to his injuries, to return a verdict in favor of the defendant. To the objection that the charge submitted the issue of the plaintiff’s duty to look and listen for the approach of the defendant’s train conjunctively, instead of disjunctive!y, it may be further said that “the duty to both look and listen comprehends the duty to do each of those things, and that the jury must have understood that, if appellee failed to do either, he would be guilty of contributory negligence, if such failure was against the dictates of ordinary prudence.” Railway Co. v. Melville, 87 S. W. 863.

The fifth assignment complains of the court’s refusal to give the following special charge: “Xou are instructed that although you may believe that the whistle on the extra train was not sounded, if you so believe, yet you cannot find for the plaintiff on this issue. There was no error in 'refusing this charge. The court did not submit in his main charge any issue with referente to whether or not the whistle on the train was sounded, and, if any such issue was made by the pleadings and evidence, the failure to submit it was equiválent- to a withdrawal of it from the jury. • Besides, -the court instructed the jury in a special charge requested by the defendant that they could not find against the defendant for any act of negligence unless such act was submitted to them by the court as an act of negligence.

Appellant’s sixth assignment of error is not accompanied by a sufficient statement of the evidence bearing upon the question sought to be presented therein for review to enable us to decide it without a search of the record, or the reading of a statement made under another assignment, to which we have been referred, of about 12 pages in length, and containing a vast amount of evidence and other matters not relating to said question. This does not comply with rules in regard to briefing a case, and this assignment will not be considered.

There was no error in refusing to give appellant’s special charge, to the effect that the plaintiff had not pleaded as an act of negligence on the part of the defendant that defendant’s employes discovered the peril of the plaintiff in time to have avoided injuring him and failed to do so; therefore not to find against defendant for so failing. The court did not charge the jury at all upon the subject of discovered peril, and we presume no such issue was raised by the evidence. In the state of the case the charge was properly refused.

Nor did the court err in refusing to direct the jury at defendant's request to return a verdict in its favor. The evidence was sufficient to warrant a verdict in plaintiff’s favor, and the submission of the issue was imperative.

The assignments not discussed disclose no reversible error, and they are overruled.

We think no substantial injury has been done the appellant by any of the court’s rulings, that the evidence sustains the verdict, and the judgment of the lower court is therefore affirmed.