71 Tex. 470 | Tex. | 1888
This action was brought in the court below by Owen Sullivan, the appellee in this court, to recover of John C. Brown, as receiver of the Texas & Pacific Railway Company, damages for injuries to plaintiffs wife, alleged to have been caused by the negligence of the employes running a train which was operated upon a railroad in charge of the receiver.
It appears from the testimony that the plaintiff and his wife were keeping a boarding car for the receiver, in connection with a construction train, and that the boarding car and other cars having been attached to an engine for the purpose of moving it and of placing a water car in proximity to it at the station where it was situated, were started with a jerk, thereby throwing Mrs. Sullivan out of the door and upon the track, dislocating her arm, breaking her leg and inflicting other injuries. She had just been asked by the conductor and brakeman where she would have the water car placed, and was standing in front of and near the door when the car started. As to the suddenness and force of the movement in starting the car, the evidence was conflicting. Mrs. Sullivan testified, in effect, that the start was very quick and violent, and that it threw Her out of the door. Pauline Scott, a servant in her employ, also testified that she was standing in the car, and was thrown down. It also appeared that the stove in the car, belonging to plaintiff, was broken. The employes of the receiver in charge of the train gave testimony tending to show that the jerk in starting was not unusual.
With two exceptions the assignments of error are based upon the charge of the court and the refusal to give instructions asked by the appellant. The charge, we think, correctly presented the law of the case. The jury are told, in effect, that the plaintiff could not recover unless the injury was caused by the negligence of defendant’s servants, and are repeatedly instructed that even in that case the plaintiff could not recover if the negligence of his wife contributed to the injury. By the repetition of the charge upon the law of contributory negligence, the court, it would seem, desired to make that question prominent, and to impress upon the jury the importance of giving it a careful consideration. In one paragraph of the charge the court instructed the jury, in effect, that the defendant would be responsible if the injury was caused by the negligence of its servants, “although there may have been negli
A seeming modification of the general rule has been recognized in a case where, by the plaintiff’s own testimony, a suspicion was created that his own negligence may have contributed to the injury. (Railroad v. Crowder, 63 Texas, 502.) In the present case the situation and acts of the persons who participated in the transaction which led to the injury.and especially the conduct of the injured party herself were fully dis closed by the evidence, and it was proper to instruct the jury to find for the plaintiff if the injury was caused by the negligence of the defendant’s employes, unless they found that the plaintiff’s wife was at the same time guilty of ordinary negligence which contributed to the injury.
“The court erred in the sixth paragraph of the charge in charging the jury that if defendant, by his agent, could by ordinary care have avoided the consequences of Mrs. Sullivan’s negligence, or by direct act of his agents caused the act which produced the injury, plaintiff can recover. This was error, because there was no evidence that defendant could have avoided the consequence of Mrs. Sullivan’s negligence.”
We are not prepared to say that there was no evidence which authorized this instruction. It does not directly appear that the conductor saw Mrs. Sullivan at the time he signaled the engineer to move the train, but it does appear that but a short while before he had approached the boarding car to ask her where she would have the water car put; and it was not unreasonable to infer that he may have been in a 'situation t<> have known of her danger if in fact she was in any danger from starting the car if moved in a careful manner. But in no event is it probable that the jury were misled by the instruction.
In reference to the charges asked by the defendant and refused by the court, it is sufficient to say as to some of them that they had been given in the general charge and should not have been repeated. In special instructions numbered one and two the court was asked to charge “to the effect that if Mrs. Sullivan knew that the car was about to be moved, when she stood up in the door of the car, and if in consequence of her standing up the jerk of the car threw her out, she can not recover.”
It was proved that Mrs. Sullivan was not standing in the door. But whether this was so or not, the question of negligence was one of fact to be determined by the jury in the light of the circumstances; and it would have been improper for the court to charge that it was negligence as a matter of law. (Ry. Co. v. Murphy, 46 Texas, 356.) The charge was properly refused.
We also fail to see that it would have been proper for the court to charge, that Mrs. Sullivan in taking charge of the boarding car assumed the ordinary risks of the situation. The theory of plaintiff’s case was, that the injury was not the result of an ordinary accident, but was the consequence of negligence on part of defendant’s servants. The jury were pointedly instructed in the general charge that the plaintiff could not recover unless the injury was by such negligence. We do not understand danger resulting from negligence to be classed among the ordinary risks of operating dangerous machinery.
The accident is alleged in the petition to have occurred at Provencal, Louisiana. The proof showed that it took place at Robeline, in that State. The defendant asked the court to charge the jury, that if the injury was inflicted at Robe fine, and not at Provencal, as alleged, they should find for the de
The evidence bearing upon the relations between Mrs. Sullivan and the defendant was given by herself, and is as follows: “Last May, I was on the work train at Robeline, Louisiana. I was cooking on the train; was cooking for my husband. I was boarding from twenty to forty men. The men were working for the Texas & Pacific Railway Company. The company paid my husband for their board, and the money was kept out of the men’s time.” The defendant asked the court to charge the jury that Mrs. Sullivan and the engineer were fellow servants, and that she could not recover for his negligence. We infer from the testimony which we have quoted that the plaintiff was keeping the company’s boarding train and boarding the men under an agreement that the company would retain the men’s board and pay it to plaintiff. We hardly think this made him an employe of the company. If the company had merely employed him to keep the boarding car and engage and supervise the servants who assisted in the work, the relation would have been different. But the witness says she was working for her husband. Then she was not working for the company, and was in no sense its employe or servant. We are therefore of opinion that the court did not err in refusing the instruction.
It is also assigned that the court erred in not granting a new trial, because the verdict is contrary to the evidence in this: The evidence showed it was Mrs. Sullivan’down fault in standing in the door when she knew the car was about to be moved that caused the injury. In support of this assignment, it is contended that the fact that Mrs. Sullivan stood up in the car when
The judgment in this case, as in that of Brown, Receiver v. Brown, decided at a former day of this term, attempts to make the recovery a lien upon the earnings, etc., of the railroad in the hands of the receiver. This in the case cited is held to be ■error. The judgment in this case will accordingly be reformed in that particular and affirmed. The appellant will recover the costs of this appeal.
Affirmed.
Opinion delivered October 16, 1888.