St. Louis Southwestern Ry. Co. of Texas v. Evans , 1913 Tex. App. LEXIS 1329 ( 1913 )

Appellant requested the court to instruct the jury to return a verdict in its favor, and in its first assignment complains of the refusal of the court to grant its request. In support of the assignment it is insisted that the testimony failed to show negligence on the part of appellant, but showed "if there was any negligence causing appellee's injuries, it was his own negligence."

Declaring, in the language used in section 1 of article 10 of the Constitution, that "any railroad corporation shall have the right to construct and operate a railroad between any points within this state," the statute further declares that "such corporation shall have the right to construct its road across, along, or upon any highway which the route of said railway, shall intersect or touch; but such corporation shall restore the highway thus intersected or touched to its former state, or to such state as not to unnecessarily impair its usefulness, and shall keep such crossing in repair." Articles 6481 and 6485, R.S. 1911. Construing the statute, the Court of Civil Appeals of the Fifth District, in Texas Midland Ry. Co. v. Johnson, 20 Tex. Civ. App. 572,50 S.W. 1044, said: "It was the manifest purpose of the Legislature enacting the statute to require of railroad companies constructing their roads along and across public highways to obstruct or interfere with travel over such public highways to the least degree practicable. They are required to restore it to the former state, not to unnecessarily impair its usefulness, and to keep it in repair. We think a liberal and fair construction of that statute would require the railway company not to wholly prevent passage of travelers along the way during the time of the construction of the railroad, when their passage may practically be provided for during the time the work is going on. If a temporary turn of the highway around the work of construction may practically be provided, then that would be a duty owed by the company to the public." In the case cited the Supreme Court refused an application for a writ of error, and so approved as correct the construction given the statute by the Court of Civil Appeals. It appeared from the testimony that the road in question was 40 feet wide, and that the traveled part thereof was about 15 feet wide. Appellee was injured between 8:30 and 9 o'clock of a morning in March, 1910. During the afternoon of the day before appellee was injured, appellant had raised its track across the road to a point 8 inches higher than it was before, and on the morning of the accident had removed the dirt between the ties, and thrown same to the south side of its track, making an embankment about 18 inches high. On each side of the traveled part of the road appellant's track had been "surfaced up" by putting gravel under and between the ties, but at the time appellee attempted to cross the track over the traveled part of the road nothing had been done towards restoring said traveled part to its former state.

There was testimony from which the jury might have found that appellant could easily have constructed a crossing over its track on either side of the traveled part of the road, for the use of the public, until it restored said traveled part to its former state. If it might have constructed such a crossing and did not, and so violated a duty it owed to appellee as one of the general public, it cannot be said there was no evidence warranting a finding by the jury that It was guilty of negligence. It is clear, therefore, that the court did not err in refusing to instruct the jury as requested by appellant, unless it was true, as asserted by appellant, that it conclusively appeared that appellee himself was guilty of negligence which contributed to cause the accident which resulted in the injury he suffered. Appellant's insistence in this respect is based on testimony showing that appellee knew, or should have known, the condition of the crossing before he attempted to go over it, and yet chose to use it, when by traveling about a mile further he could have safely crossed the track at another crossing maintained by appellant. As announced by the Supreme Court in Railway Co. v. Gasscamp, 69 Tex. 545, 7 S.W. 227, the law seems to be against appellant's contention. In that case it appeared that the bridge the plaintiff attempted to cross was in a dangerous condition, and that he knew it; but it also appeared that it was being used by the public, and that it was a part of the only public road between the plaintiff's home and the city of Brenham, where he was going at the time of the accident. The court held it could not be said, as a matter of law, that the plaintiff was guilty of contributory negligence, and declared the law to be that if a traveler has "no other convenient way, the mere fact that he takes the chances of a known danger and attempts a passage is not controlling proof of his negligence. Whether the act be negligent or not depends upon the circumstances attending it; and the question is for the determination of the jury."

Appellee testified: "As I approached that crossing I stopped before I got to the crossing and had a conversation with a man they called the straw boss, who was in charge of those men working there at the time. * * * This foreman or straw boss told me that the track was a little rough, but there was a wagon crossed just before, and I could make it all right, to get out and lead across." In his charge the court told the jury, other conditions concurring, to find for appellee if they believed appellant's foreman so stated to appellee; that the latter relied on the statement, and further believed, quoting, "that the defendant company and the foreman of its repairing crew in making the statement to the plaintiff which induced plaintiff to attempt the crossing, if it did, was, under all the facts and circumstances of the case, guilty of negligence as that word has been heretofore defined, and that such negligence, if any, was the direct and proximate cause of plaintiff's injury." Appellant insists that the instruction was erroneous because appellee had not alleged the conduct of its foreman to be negligence on its part. The contention must be sustained. The allegations in the petition as to the conduct of the foreman, as is shown in the statement above, were not made for the purpose of charging appellant with negligence, but for the purpose of negativing negligence on the part of appellee in attempting, as he did, to go over the crossing. Therefore the instruction was erroneous, for it is well settled that a charge should not authorize a finding of liability on grounds not pleaded. Railway Co. v. Vieno, 26 S.W. 230; Sanches v. Ry. Co., 88 Tex. 117, 30 S.W. 431; Railway Co. v. French, 86 Tex. 98. 23 S.W. 642: Loving v. Dixon,56 Tex. 75; Railway Co. v. Silegman, 23 S.W. 300.

The rulings made in effect dispose of all the assignments.

For the error pointed out in the charge, the judgment will be reversed and the cause will be remanded for a new trial.