99 S.W. 897 | Tex. App. | 1907
These are suits by J. A. Anglin, Jr., suing by J. A. Anglin, Sr., as next friend, and J. A. Anglin, Sr., against appellant for damages on account of personal injuries alleged to have been sustained by J. A. Anglin, Jr., through the negligence of appellant. Upon a jury trial there was a verdict and judgment in favor of the plaintiff J. A. Anglin, Jr., for $2,000, and for the plaintiff J. A. Anglin, Sr., for $200.
In our opinion there is sufficient testimony as shown by the record to support the finding of the jury that J. A. Anglin, Jr., was not guilty of contributory negligence in any of the respects alleged by appellant in its answer; and we are also of the opinion that the testimony is sufficient to justify the finding of the jury that appellant was guilty of all or some of the acts of negligence charged in appellees' petition against it, and that same directly and proximately caused the injuries to J. A. Anglin, Jr., alleged in appellees' petition. We therefore overrule appellant's first, second and third assignments of errors
We do not think the action of the court below in refusing to give appellant's special charge number 9, of which complaint is made in its fourth assignment, was error. The jury were fully instructed upon the question to which this special charge relates in paragraph 8 of the general charge of the court, in connection with special charge number 4 requested by appellant, and which was given to the jury by the court. The word "crossing," used by the court in paragraph 8 of its general charge was intended to apply to the point where J. A. Anglin, Jr., attempted to cross the railroad track, and was evidently so understood by the jury.
The court properly refused special charge number 6 asked by appellant, as the issue of discovered peril was not submitted to the jury.
The court in its main charge properly directed the jury as to the subject matter of appellant's 7th, 10th, 12th and 2nd special charges; hence there was no error in their refusal.
There was no error in the refusal of the court below to give appellant's special charge number 3, as it ignored the theory, upon which there was some evidence, that appellant failed to ring the bell in approaching the crossing of Trinity and Third Streets; and that if it had rung the bell at that time such ringing would have warned appellee, *44 J. A. Anglin, Jr., who was in a closed wagon in advance of appellant's locomotive and could not see it, of its approach, so that he might have avoided the accident.
Appellant's special charge number 5 did not embody a correct principle of law, in that it placed the burden upon appellees of proving that J. A. Anglin, Jr., was not guilty of contributory negligence in attempting to cross appellant's track on a public street, which is not the law; and the court in its general charge properly instructed the jury as to the degree of care that J. A. Anglin, Jr., was required to exercise in approaching and going upon appellant's railroad track.
The use of the words "by reason of," instead of "as the direct and proximate result of," by the court below in paragraph 5 of its charge, was not misleading to the jury, as the words first quoted were the equivalent of those last quoted; and, perhaps, would have been more easily understood by the average jury. Anyway, other portions of the court's charge, which must be considered in its entirety, properly explained to the jury that they were not authorized to find in favor of the plaintiffs, unless they found from the evidence that the injuries sustained by J. A. Anglin, Jr., were the direct and proximate results of appellant's negligence.
The sixth and eighth paragraphs of the court's charge are not subject to the criticisms of appellant embraced in its fourteenth and fifteenth assignments of error. The reference to public street crossing in the sixth paragraph was proper in instructing the jury as to appellant's statutory duty in reference to blowing its steam whistle; and the word "crossing," used in the eighth paragraph, was intended to apply to the point where J. A. Anglin, Jr., attempted to cross appellant's railroad track; which, according to the uncontroverted evidence, was on Third street a few feet west of its intersection with Trinity, which the jury evidently understood.
In view of the testimony relating to that question, we do not think the verdict of the jury is excessive in any respect, but is amply supported by the evidence.
The judgment of the court below is affirmed.
Affirmed.
Writ of error refused.