Lancaster v. Mays

WILLSON, C. J.

(after stating the facte as above).

[1,2] The sixth and seventh paragraphs (set out in the statement above) of the court’-s charge to the jury are attacked as erroneous. It is insisted that it conclusively appeared from the testimony: (1) That the engineer discovered that the switch had been thrown for the side track before his' engine reached same; and (2) that ap-pellee was thrown-or jumped from the engine before it collided with the cars on the side track. It is urged that the trial court therefore erred when, in said sixth paragraph, he submitted -those matters to the jury as issues in the case. It is asserted that the court should, instead, have told the jury the engineer did discover before his engine reached it that the switch had been thrown, and that appellee was thrown or jumped from the engine before it collided •with the cars.

If it should be conceded that the trial court erred as charged, it would not follow that the judgment should be reversed. To authorize this court to reverse the judgment it must not only appear that the trial court committed error, but it must also appear that the error was reasonably calculated to,' and probably did, injure appellants. Appellants have not undertaken to point out, and We do not see, how, if the action of the court was erroneous as charged, their rights could have been thereby prejudiced. Therefore we think it unnecessary to stop and determine whether the court erred as asserted or not.

What has been said applies as well to the objection, and the contention based thereon, made to the seventh paragraph of the charge, to wit, that it conclusively appeared from the evidence that some unauthorized person changed the switch, and that it-was therefore error for the court, instead of telling the jury it so appeared, to submit for their consideration a question as to whether the switch was changed by an unauthorized person or not. It not only is not made to appear that the error, if any, of the court in so charging the jury was prejudicial to appellants’ ' rights, but it is plain, when the theory upon which the jury was authorized to find in appellee’s favor is kept in mind, that no right of the appellants could have been prejudiced by the instruction given.

The fourth, fifth, sixth, and seventh assignments are predicated upon the action of the court in refusing certain special charges requested by appellants. Had the charges been given, the jury would have been instructed by one of them that they could not find “that the engineer was * negligent in what he did after he saw that the switch was set for the spur track,” because it appeared from the testimony that thereafter-wards he “did everything in his power to stop the train as quickly as he could”.; by another, that appellants were not responsible for the switch being thrown as it was, because it appeared that it was so thrown by some unauthorized person; by another, that in determining whether it was due to negligence on the part of appellants that the switch was open on the occasion in question or not, they should not consider evidence showing that it was open on other occasions ; and by the other, that if the switch light showed green to the engineer as he approached the side track he “had the right to rely on that fact as showing the switch set for the main line, and would not be negligent in doing so, unless and until he received information that the switch was set for the spur track.”

In their eighth, ninth, and tenth assign-appellants assert that the verdict was contrary to the evidence in that it appeared: (1) That “some unauthorized and malicious person had purposely changed the switch so that the train would go in on the side track, and changed the light so as to mislead the engineer and causé him to think the main line was safe for him to pass on”; (2) that the engineer “kept close lookout ahead of him, and, having seen the green light, supposed that the main line was clear until he got too near the switch to stop Ms train”; (3) that the engineer “after he saw the switch was set for the spur track did everything in his power to stop the train or lessen its speed before plaintiff was injured.”

[3] In their eleventh assignment appellants attack the verdict as “indefinite, in that, when read in the light of the charge of the court, it cannot be known whether the jury intended to find that the defendant was negligent in having the switch, at the time of the accident, thrown for the spur track, or whether they based their finding on the fact that the engineer was negligent in not observing the fact that the switch was thrown for the spur track sooner than he did, or whether they based their finding on the fact that the engineer failed to do everything in his power to stop the cars after he discovered that the switch was turned for the spur track.”

Practically all of the objections to the judgment presented by the assignments above specified are predicated upon a view of the case as tried which we think is not warranted by the record. The theory, and only theory, on which the jury were authorized by the charge to find in favor of appellee was that the engineer was guilty of negligence in that he failed to exercise ordinary care “in keeping a lookout for the condition of the track,” and,- as a consequence, failed, to discover that the switch was thrown as it was in time to have stopped the train before it ran onto the side track.

It is plain, therefore, that the verdict was not “indefinite,” as is asserted, for the jury were not authorized by the charge to find in favor of appellee upon the ground that appellants were guilty of negligence in having the switch thrown as it was, nor upon the ground that the engineer failed to do everything in his power, after, he discovered that the switch was thrown, to stop his train before it ran onto the side track.

[4, 5] And it is just as plain, we think, the court having instructed the jury as stated, that appellants are not entitled to have the judgment reversed because the court refused to further instruct them (1) not to find the engineer to have been guilty of negligence for not doing more than he did to stop the train after he discovered that the switch was open for the side track; (2) not to find appellants guilty of negligence because it appeared that the switch was too open; and (3) not to consider evidence showing that the switch was so open on other occasions than the one in 'question. If the jury regarded the instructions given them, and it must be assumed that they did, they could not have based their verdict upon the matters forming the subjects of the refused charges specified.

[6] As to the special charge which would, have told the jury, had it been given, that the engineer had a right to assume that the switch was set for the main line if the switch light showed to be green as he approached it, it clearly would have been error to have given it. There was testimony that the switch stand was constructed to show a réd light and a red target when the switch was set for the side track, and a green light and a green target' when it was set for the main line track. There was testimony that the switch stand had been so changed as to- show a green light and a red target on the occasion in question. And there was testimony that the engineer, when 175 to 200 yards from the stand, by the exercise of ordinary care, could have seen that the target showed red. If he could and did not see it, or if he did see it, but ignored’ the warning it carried, certainly it was for the jury to say whether he was therefore guilty of negligence or not.

[7] It is obvious, in view of the instructions to the jury, that the assignments attacking the verdict as contrary to evidence showing that the switch was changed by an unauthorized person, and that the engineer

did everything in his power to stop the train after he discovered that the switch was thrown for the side track, should be overruled. That the switch was so changed and that the engineer so acted were not reasons why the'jury should not have found the engineer guilty of negligence in failing, until his engine was within 100 feet of the switch, to discover that it was set for the side track, when by the exercise of care he should have discovered that the switch was set when his engine was as far as 175 to 200 yards from it.

All the assignments, including the twelfth, which presents the contention on the part of appellants that the verdict is excessive, are overruled, and the judgment is affirmed.

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