| Tex. App. | May 3, 1905
Albert Crowder and one John Kelly were riding in a buggy drawn by a mule. They were traveling a street in the town of Commerce, and while crossing the track of the St. Louis Southwestern Railway Company an engine, which was nearby, started in the direction of the crossing, and the mule became frightened, ran away, threw Crowder out of the buggy thereby inflicting upon him certain injuries. Crowder brought this suit against the railway company, charging that the employes who were operating the engine "suddenly and without warning or notice of any kind to plaintiff, started toward plaintiff and said Kelly at a rapid rate of speed, and at the same time the steam from said engine was permitted to escape in great quantities and said locomotive was permitted to make a great deal of unusual, unnecessary and unreasonable noises; that said acts were done and permitted in a negligent manner by defendant's agents in charge of and operating said locomotive; that said locomotive came very near colliding with said vehicle in which plaintiff and said Kelly were riding, and that said locomotive and the steam and smoke escaping therefrom, and the noises made by the same, caused the mule attached to said buggy to become suddenly frightened and to run away; that being badly frightened by said locomotive, and in order to escape from being struck by said locomotive, the said mule ran down the track in front of the same, and caused the said buggy to be suddenly jerked in such a violent manner that the plaintiff was thrown therefrom, etc." *317
The first assignment complains of the ruling of the court as to the admissibility of certain testimony. The bill of exception shows that while the plaintiff was on the stand testifying in his own behalf, he was asked by the defendant's counsel on cross examination if he drank any whiskey on the day of the accident. The plaintiff's counsel objected to the question on the ground that it was too general and should be limited to some time prior to the accident. The court overruled the objection, and the plaintiff answered that he had taken a dram that day; that John Kelly had a bottle in the buggy, and the plaintiff took a drink therefrom, but it was shown that that occurred after the happening of the accident.
We think the court should have sustained the objection to the question. The fact that the plaintiff drank whiskey after the accident occurred was wholly immaterial. As bearing on the question of contributory negligence, it might have been permissible to show that he had been drinking before the accident occurred, but it was immaterial to show that he had drunk intoxicating liquor after the accident. Whether or not the ruling here complained of would require a reversal of the judgment need not be decided, as we hold that other grounds for reversal are shown.
The fourth paragraph of the court's charge reads as follows:
"4th. Therefore, if you believe from the evidence that plaintiff and one John Kelly were on and driving across Sycamore Street in the city of Commerce, as alleged by him, and that an engine which was standing on the track of defendant's railroad, as alleged by plaintiff, in charge of defendant's servants, suddenly and without warning or notice of any kind to plaintiff, started towards plaintiff and said Kelly, and if you believe that plaintiff and the said Kelly were in full view of the servants of defendant operating said engine; and if you believe that said servants saw the situation of said plaintiff, or by the use of ordinary care, as above defined, they would have seen his situation, and if you believe that while the plaintiff was so situated, said servants of the defendant in starting said engine, if they did so start it, caused said engine to emit steam in great quantities and to make a great deal of unusual, unnecessary and unreasonable noises; and if you further believe that such noises, if any, made by the discharge of the steam, if any, was under the circumstances, reasonably calculated to frighten the mule driven by plaintiff and said Kelly; and if you believe that such noise caused by the discharge of said steam, if any, and the approach of said engine, if it did approach, was reasonably calculated to endanger the safety of plaintiff; and if you believe that the danger, if any, to plaintiff from the discharge of said steam, if any, and the approach of said engine, if it did approach, was known to said servants or could have been known to them by the exercise of ordinary care; and if you further find that the making of such noise, if any, by the discharge of steam, if any, and the starting of said engine, if it did start, toward said plaintiff, if there was such starting of such engine and such discharge of steam, was negligence, as that term has been heretofore defined; and if you believe that such negligence, if any, caused the mule driven by plaintiff and the said Kelly to become frightened and unmanageable and to run away, and that plaintiff was *318 thereby thrown from the vehicle and injured, as alleged by him, in his foot, ankle and leg; and if you believe that the negligence of the defendant, if any, in the matters herein submitted to you was the proximate cause of plaintiff's injury, if any, you will find for the plaintiff, unless you find for the defendant under other issues submitted to you."
This charge is assigned as error, counsel for the plaintiff contending that it required the jury, in order to find for him, to find that he was in full view of the servants operating the engine; and also to find that the servants of the defendant in starting the engine caused it to emit steam in great quantities, and to make a great deal of unusual, unnecessary and unreasonable noises. The contention is that the charge required the jury to find more facts than the plaintiff was required to prove before they could find a verdict for him. According to the views of our Supreme Court, as expressed in Texas Pac. Co. v. Brown,
We overrule all the other assignments which complain of the court's charge. However, we sustain the fifth and sixth assignments, which complain of the action of the court in refusing special instructions requested by the plaintiff. The plaintiff alleged that the defendant was guilty of negligence in not having a flagman or watchman at the place where the accident occurred; and without commenting on the testimony, or indicating any opinion as to what should be the finding thereon, we think it was sufficient to require the issue to be submitted to the jury, and that appellant's requested instruction on that subject should have been given.
We also hold that the instruction requested on the subject of imminent peril, set out under appellant's sixth assignment of error, should have been given. The plaintiff's petition and the testimony submitted thereunder presented that issue.
We also sustain the seventh assignment which complains of the action of the court in refusing to give the following requested instruction:
"You are instructed that if you believe from the evidence that the defendant's locomotive was standing near a public crossing, as alleged by plaintiff, and that the plaintiff believed that the said engine would remain standing until he would have time to drive across the tracks, and that so believing he drove or was driven onto the tracks of defendant, and if you further believe that when he had reached a point near the said engine, if he did, that the said engine started to moving towards him, and that the mule attached to the buggy in which he was riding became frightened at the movement of the engine and the noise attending its movement, if it moved, and if it made any noise, and that such movement, if any, by the employes in charge of the locomotive at *319 said time and place was negligence as that term is defined in the court's main charge, and if you further believe that the plaintiff was not guilty of contributory negligence, you will find for the plaintiff."
This instruction, if given, would have authorized a verdict for the plaintiff upon a finding of some, but less than all, of the facts grouped together in the court's charge. The plaintiff would be entitled to a verdict on a finding of the facts referred to in his requested instruction, and as the court's charge did not so instruct the jury it was error to refuse this instruction.
The judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.