69 S.W. 421 | Tex. App. | 1902
The case is thus succinctly and sufficiently stated in the brief of appellant: "Plaintiffs, G.T. and G.W. Greer, father and son, while traveling in a wagon along Adams street, in the city of Fort Worth, had their wagon and team struck by the tender of an engine on defendant's line of railway, at what is known *562 as the Adams street crossing, thereby throwing plaintiffs to the ground and inflicting injuries on them, destroying the wagon and injuring the team, for which each brought suit, alleging as grounds for recovery failure to ring bell or sound whistle, failure of servants in charge of engine to keep lookout; failure to have watchman give warning. Defendant answered by general denial and plea of contributory negligence. The cases were consolidated; trial had, resulting in a verdict and judgment for G.T. Greer for $2000 and for Guy W. Greer for $3000."
The court charged the jury that it was the duty of the person in charge of the train to blow a whistle and to ring a bell before crossing Adams street, and that appellant would be liable if, without fault or negligence on the part of appellee, the failure to blow the whistle or to ring the bell caused the collision. To this charge the first error is assigned on the ground that the statute requiring a whistle to be blown at a public crossing is inapplicable to a case like this, where the train was less than eighty rods from the crossing when it started towards the crossing in support of which the case of Railway v. O'Neil, 47 Southwestern Reporter, 95,
The construction thus authoritatively given the statute seems to sustain appellant's contention and is binding upon us. Evidently the Legislature did not intend to require the whistle to be blown at a distance of eighty rods or more from the crossing and also at a distance of less than eighty rods from the crossing, but required one or the other to be done, and, as construed by the Supreme Court, only the former. It was therefore erroneous to instruct the jury, as was in effect done in this case, that it was negligence per se to fail to blow the whistle at a less distance than eighty rods of the crossing.
Appellees, however, place a different construction upon the decision in the O'Neil case, and insist that the charge complained of was warranted *563
by the decision of this court in Railway v. Laverty, 22 Southwestern Reporter, 1047, and of the Supreme Court in Railway v. Bailey,
We are also inclined to the opinion that the charge complained of in the second assignment of error was erroneous in submitting as a measure of recovery the reasonable value of the services of physicians, since we must hold, on the authority of Warren v. Railway,
The court submitted the issue of contributory negligence in general terms, and was not required to give special charges 4 and 6 on that subject, to the refusal of which error is assigned, because both seem to have been upon the weight of the evidence, or at least were so expressed as to be objectionable. We think, however, that appellant would have been entitled to a specific charge embodying the phase of contributory negligence specially pleaded and which the evidence tended to sustain, if a correct one had been requested. Railway v. Scheider, 30 S.W. Rep., 906; Railway v. McGlamory, 35 S.W. Rep., 1058; Railway v. Mangham, 4 Texas Ct. Rep., 682.
For the errors pointed out in the first and second assignments of error, the judgment is reversed and cause remanded for a new trial.
Reversed and remanded.