137 S.W. 403 | Tex. App. | 1911
The controlling issue is as to whether appellee, by the exercise of ordinary care, should have known that the engine was running when he attempted to oil it. If the engine had not been running, there would have been no danger; if by looking and listening he could have ascertained that it was running, and the exercise of ordinary care demanded under the circumstances of the case that he should have looked and listened, he was guilty of contributory negligence. This issue was submitted to the jury under a special charge requested by appellant, and was decided in favor of appellee.
Appellant complains that the main charge of the court placed too great a burden on it by using the words "entirely familiar with the mechanism of the engine," and if he "necessarily would have seen if he had looked, or heard if he had listened." If so, the error was corrected by the special charge given. But such charge was not affirmative error. The court told the jury that, if such were the facts, their verdict should be for the defendant, and it should have been, though the defendant might have been entitled to a verdict upon other facts. In Railway v. Hill,
The charge is not subject to the criticism that it assumes the existence of controverted *404
facts, or of negligence, nor that it authorized the jury to pass on negligence other than submitted in the charge for their consideration. Special charge No. 8, refused, did not amplify the charge given in any material sense. We do not think that the use of the technical expression "proximate cause" would have aided the jury. Railway Co. v. Ormond,
There was no error in refusing special charge No. 4, for the reason that it ignored the issue as to appellant's knowledge of the engine being in motion. There was no error in permitting appellee to testify that he had suffered mental distress by reason of being incapacitated to earn a livelihood.
Finding no error in the record, the judgment is affirmed.
Affirmed.