108 S.W. 964 | Tex. | 1908
Lead Opinion
This suit was brought in the name of Hugh Johnson, a minor, by his father, W.L. Johnson, as next friend, who also sued in his own behalf, to recover damages for personal injuries sustained by Hugh Johnson on the 5th day of June, 1906, in crossing the railway track of appellant in the town of Dalhart, Texas. The trial resulted in a verdict for $18,000 in favor of Hugh Johnson, and $2,000 in favor of W.L. Johnson, but the court required one-half the recovery to be remitted, and entered judgment accordingly.
The ground of recovery alleged was the negligence of appellant in blocking the street with a train of freight cars, and in permitting the same to remain obstructed for a longer period than five minutes, in violation of an ordinance of the town of Dalhart, and in suddenly moving this train of cars without warning, by ringing the bell or blowing the whistle or otherwise, to Hugh Johnson, who attempted to cross between the cars. It was alleged that people had been in the habit of crossing between the cars under such circumstances; that appellant was aware of this fact; and that Hugh Johnson, observing this, and thinking it would be safe for him to pass between the cars, and also observing one of the servants of appellant, or a person he thought to be one of appellant's servants in charge of the train, who was standing near the track, make a motion with his hand inviting him to pass between the cars, and relying upon this motion as an invitation, and also upon the fact that others were or had been crossing between the cars with the knowledge of appellant, he too attempted to do so, when his foot was caught between the bumpers and mashed. It was further alleged as a ground of recovery that the employees in charge of the train after discovering the perilous position of Hugh Johnson negligently set the train in motion.
Contributory negligence was one of the defenses relied on, and consisted, as alleged, in the conduct of Hugh Johnson in attempting to cross between the cars when no person of ordinary prudence would have attempted such a thing, and also in his placing his foot between the bumpers.
Error is first assigned to the charge of the court submitting the defense of contributory negligence, in that it required the jury to *424 find that Hugh Johnson was negligent both in the attempt to cross between the cars and in the manner in which he stepped upon the coupling while in the act of crossing. This charge states that it is given "in lieu and as a substitute for special charges requested by the defendant," and the language of the part objected to is as follows: "If you believe from the evidence that the plaintiff, Hugh Johnson, attempted to cross between two cars on defendant's track, and that it was negligence on his part so to do, and if you believe that in attempting the crossing he was guilty of negligence in the manner in which he stepped upon said coupling and attempted to cross, and that said negligence, if any, contributed to his injury, the plaintiffs can not recover herein unless you find for the plaintiffs under paragraph 4 of this charge," which submitted the issue of discovered peril. In the special charge or charges referred to, the court was requested to submit these defenses disjunctively, but the requested charge most in point and least objectionable contained one or more features which rendered it inadmissible. The rule is well settled that the court, in dealing with a requested instruction, is not required to segregate the good from the bad, but may refuse it entirely where it is substantially incorrect. In this instance, however, the court did undertake to reproduce in his charge the admissible portion of the requested instruction, and it may be that this should be treated as an exception to the rule. But be this as it may, if appellant on account of the defects in its requested instruction is not in position to claim a reversal of the judgment, the court nevertheless, in order to fairly present the defenses to the jury, should have submitted them disjunctively, and not conjunctively as was done. See Kershner v. Latimer (Tex. Civ. App.), 64 S.W. Rep., 237, which seems to sustain the contention of appellant that the charge was erroneous and misleading, but in view of the disposition made of the appeal under other assignments, we do not find it necessary to determine this question.
In the third paragraph of the charge the conduct of appellant in obstructing the street with its cars in violation of the city ordinance was made unduly prominent, and error is assigned, not only to this feature of the charge, but also to the refusal of the third special instruction requested by appellant to the effect that its negligence in blocking the street would not warrant a recovery, and these assignments we think must be sustained.
Hugh Johnson, who was an adult of more than 17 years at the time of the accident, made it quite clear in his testimony that he undertook to pass between the cars because of an invitation of a man who seemed to him to be engaged in directing the movements of the train, the invitation as he construed it being given by the motion of the hand, and that he would not have undertaken to pass between the cars but for this fact. He was traveling along the street, and, finding it obstructed, turned aside to a path that led across the railway track, and waited there some 10 or 15 minutes or longer without attempting to cross, and, as he admitted, without intending to cross, although he had noticed others crossing *425
between the cars, until the train was moved out of the way, when he observed the man motion to him, as he supposed, to cross over, on the faith of which alone he undertook to cross. That the blocking of the street under such circumstances, though an act of negligence and a criminal act at that, could not have been the proximate cause of the injury, but was only the occasion or a remote cause thereof, seems clear enough. The following authorities cited by appellant illustrate and sustain this conclusion, to wit: De La Pena v. International G.N.R. Co., 32 Texas Civ. App. 241[
Because the court gave undue prominence to a criminal act of negligence, which was clearly not the proximate cause of the injury, and refused the special instruction on this point as indicated above, the judgment is reversed, and the cause remanded for a new trial.
Dissenting Opinion
Appellant's third special charge could only have been given upon the theory that its negligence in blocking the crossing was not the proximate cause of appellee's injuries, and in reversing the case for the refusal of this charge the majority opinion has adopted that view of the law. The cases relied on by appellant to support this proposition are not decisive. In De La Pena v. International Great Northern R. Co., 32 Texas Civ. App. 241[
In the present case the court's charge required a finding of negligence both in the particulars of blocking the crossing and in starting the cars before plaintiff would be entitled to a recovery. Nor can it be said that the act of the person inviting appellee to cross between the cars is the sole proximate cause, even though appellee testifies that he would not have attempted to cross but for this invitation. Necessarily he would not have attempted to cross as he did if the street had not been blockaded, so that his testimony in this particular does not alter the situation or make that which would otherwise be a contributing cause the sole proximate cause of the injury. Suppose under the evidence the jury were to find that no signal was given to appellee. What then would be the proximate cause of appellee's injuries? But one answer can be returned, that is, the negligence of appellant company in unlawfully blockading the street and in starting its train without warning to appellee. Or, suppose the signal was given, but by some person other than an employe of appellant, then there would simply be the act of negligence of a third person concurring with the negligence of appellant, proximately causing appellee's injuries, and each would be equally liable. So that in my opinion it would have been error for the trial court to have given the special charge, and thus to have said, as matter of law, that the negligence of appellant in blockading the street over which appellee desired to pass was not a contributing proximate cause to his injury.
The question last certified, presented in the brief but not passed on in the above opinions, is raised by appellant's first assignment of error and first and second propositions thereunder, and will be found in the extracts from its brief.
Addendum
This case is presented upon a certificate from the Court of Civil Appeals for the Second District. Its nature may be gathered from the opinion of Mr. Justice Stephens, writing for the majority of the Court of Civil Appeals, and the dissenting opinion of Mr. Justice Speer, both of which will he inserted by the reporter.
The dissent arose upon a charge given and a special charge refused by the trial court, which are as follows:
"3. If you find from the evidence that Hugh Johnson approached the crossing or road, on or near Pine Street, crossing defendant's *430 road, for the purpose of going to the south side of said town, and that said crossing or road or street was blocked with cars by defendant for a longer time than five minutes after he approached said crossing and if you find that he waited for longer than five minutes at said crossing for the purpose of going to the south side of said town, and that said crossing remained blocked and that he went on down said track to a foot-path leading across said track of said defendant from the north to the south side of said town, for the purpose of going around said train of cars, and if you find that said footpath was commonly used by the public in passing to and fro from the north and south side of said town with the knowledge and acquiescence of the defendant; and if you find that it was customary for the defendant to block said road, street and footpath with cars for a longer period than five minutes at a time and that it was customary at said times for people passing to and fro along said footpath to pass between the cars when so blocked, and that such custom, if any, was known to the defendant; and if you further find that said Hugh Johnson attempted to pass between said cars at said time at said footpath, while said cars were standing still, and that his foot was caught between the bumpers of the same and mashed necessitating amputation, and if you find that the employees in charge of said cars moved the same without any warning to said Hugh Johnson, or without ringing the bell or blowing the whistle of the engine, and if you further find that the moving of said cars under said circumstances, if they were so moved, was negligence as heretofore defined, that said Hugh Johnson was thereby injured, and the plaintiff's thereby damaged and that said negligence, if any, was the proximate cause of plaintiff's injury, you will find for the plaintiffs, unless you find that said Hugh Johnson failed to exercise the care for his own safety that a person of ordinary prudence of his age would exercise under the same circumstances."
Special charge refused: "You are instructed that under the evidence in the case, you can not find for the plaintiffs on the ground that the defendant blocked the crossing described in the evidence as just west of the depot, or the paths mentioned in the evidence, even though you may believe that the said paths and crossings were blocked for more than five minutes or any length of time and even though you may believe that the defendant was negligent in blocking the same."
The following questions are asked with reference to these charges:
"First. Did or not the trial court err in the third paragraph of his charge to the jury by making the conduct of appellant in obstructing the street with its cars in violation of the city ordinance of the city of Dalhart, Dallam County, Texas, unduly prominent?
"Second. Did or not the trial court err in refusing the third special instruction requested by appellant to the effect that its negligence in blocking the streets would not warrant a recovery?
"Third. Was or not the blocking of the street of appellant *431 with its cars, over which street appellee desired to pass, a contributing proximate cause of appellee Hugh Johnson's injuries?"
We answer the first and second questions in the negative, the reasons being satisfactorily given in the opinion of Mr. Justice Speer. The third question calls for a conclusion upon a mixed question of law and fact to be drawn from the entire record, which is not before us, and, therefore, it would probably be improper and certainly unnecessary for us to answer it further than is done in answering the first and second questions. We gather enough from the two opinions to enable us to say that the trial court did not err in submitting the question of proximate cause to the jury.
The other question is submitted upon the charge given by the trial court instead of special instructions requested by the defendant. It is copied in the majority opinion from which the nature of the objection made to it may be seen. The charge thus given should be treated as any other instruction given by the court. It states a correct rule of law for the benefit of the defendant and contains no affirmative error. If the defendant desired a more distinct separation of the two phases of contributory negligence relied on, correct special instructions should have been requested. (Yellow Pine Oil Co. v. Noble,