231 S.W. 349 | Tex. Comm'n App. | 1921
Victor Shafter instituted
this suit to recover of the International & Great Northern Railway Company and its receiver, James A. Baker, for personal injuries alleged to have been sustained by reason of the negligence of the defendants. The answer was a general denial, and a plea of contributory negligence. The suit was dismissed as to the railway company.
Upon the issue of liability, the court submitted but two issues to lie jury, both of which were answered in the affirmative. They are:
“No. 1. Was the defendant, James A. Baker, receiver of the Internatioal & Great Northern Railway Company, his agents and employés, guilty of negligence in operating its engine at the time and place, under the circumstances, in running its engine over the plaintiff and inflicting the injuries which you may find from the evidence were so inflicted on the plaintiff?
“No. 2. Was the plaintiff guilty of negligence in attempting to cross the railroad tracks of the defendant at the time and place and under the circumstances which you may find from the evidence he so undertook to cross said tracks when he was struck by the engine of the defendant?”
The court rendered judgment for plaintiff in the sum of $3,000, and, upon appeal, the Court of Civil Appeals affirmed the judgment. 208 S. W. 961.
It will be observed that, in each of the special issues submitted, the element of proximate cause was omitted. It also appears that neither of the parties requested a finding upon this issue, and that the only objection to the special issues submitted was that by plaintiff in error to special issue No. 1 — the objection being that there was no evidence warranting its submission.
The honorable Court of Civil Appeals held that, while there was no specific plea of discovered peril, it is involved in the general issue of proximate cause, and raised in a general way by the allegations that the operative in charge of the engine failed to stop it, and that, as there was evidence upon which a finding sustaining such an issue could be predicated, therefore, in support of the trial court’s judgment, plaintiff’s negligence should be treated as the remote, and not the proximate, cause of the injury.
Plaintiff alleged:
“Plaintiff further avers that at said time and place it was the duty of 'defendants:
“(a) To operate their switch engines, at all hours while in motion, at said crossing in charge of and under the control of careful and competent firemen, engineers, and other operatives,*351 switchmen, or -watchmen, by keeping a close and careful watchout ahead for pedestrians and others who might be on or in places of danger near the tracks, so as to be able to see them and prevent their injury by said heavy and dangerous instrumentalities thus propelled along such public streets, and to so adjust the speed of such switch engines as to have them under perfect control, and be able to stop them in short order when necessary to preserve human life or limb that might be lawfully on the said tracks, which the defendants, their servants, and employees negligently failed to do on this occasion, and which they could or should have done, and they then and there failed to keep such proper lookout, and if they had done so they could have stopped said engine and prevented said injury to plaintiff, which they faded to do, and thus their negligence became and was the proximate cause of plaintiff’s said injuries. * *
“(c) It was also the duty of defendants to maintain safe, proper, and up-to-date appliances and machinery with which the operatives were to operate and control their switch engines while in the streets of said city at the time and place in question, in order to stop said engines in short and proper order in case of persons suddenly getting on their tracks in front of such moving engines, and the' defendants either negligently failed to equip and furnish their switch in question on this occasion with such safe appliances or equipments, or the operatives of said switch engine negligently failed to use the same, and thereby said failure of duty on the part of defendants became and was a proximate, contributing cause to plaintiff’s said injuries.”
Defendant pleaded:
“That plaintiff had frequently, prior to the accident, passed over said tracks at this point, and well knew that there might be expected engines and cars to be passing over said tracks and across Lakeview avenue at any time. But, notwithstanding this knowledge, plaintiff walked diagonally across said tracks, and without stopping, looking, or listening negligently stepped immediately in front of a moving engine, and, before his peril was discovered by the operatives thereof, suffered the accident complained of; wherefore he cannot recover.”
It will thus be seen that there is no allegation charging the second essential element of discovered peril; that is, that the operatives in charge of the train discovered plaintiff’s perilous situation in time to have averted injury to him. Neither was the issue submitted nor requested to be submitted to the jury for a finding.
The case, in our opinion, will, of necessity, have to be reversed, and; as the Court of Civil Appeals found that there was evidence raising the issue of discovered peril, the ends of justice will be best subserved by remanding the cause for another trial. Camden Fire Ins. Co. v. Yarbrough, 215' S. W. 842, and authorities there cited.
Therefore, we recommend that the cause be reversed, and remanded for a new trial.
The judgment recommended in the report of the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.
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