120 S.W. 269 | Tex. App. | 1909
On July 24th, 1907, while David James, Sr., was driving a wagon and team across appellant's track in the town of Smithville, his team and wagon were struck by one of appellant's trains of cars, from which he received injuries that are alleged to have been the cause of his death, which occurred in February thereafter; and this suit is brought by Julia James, his surviving widow, and her children, to recover damages therefor, alleging negligence on the part of appellant, and that his death was proximately caused therefrom. *590
Appellant, after general and special denials, relied upon and pleaded contributory negligence of the deceased in failing to stop or look or listen for the train before driving upon its track.
There was a jury trial, resulting in a verdict and judgment for the plaintiff Julia James, and in favor of the company against the children, all of whom were adults, for the reason that they were not dependent upon their deceased father for their support, from which judgment this appeal is prosecuted.
Appellant contends that, as a matter of law, deceased was guilty of contributory negligence, and that the trial court erred in not so instructing the jury, and likewise erred on account thereof in refusing to grant its motion for new trial. We overrule these contentions, because we believe the evidence required the submission of this issue to the jury. It is true that the evidence shows that the deceased did not stop before driving upon the track, but it is not shown that he did not listen for the approach of the train notwithstanding he failed to stop; and while the evidence shows that he was looking ahead, still, under the circumstances as disclosed by the record, he may have been in the exercise of ordinary care in so doing, and a failure to look or listen could not be held, per se, negligence. (Frugia v. Texarkana Ft. Worth Ry. Co., 36 Texas Civ. App. 648[
We likewise think there was sufficient evidence of negligence on the part of appellant to require at the hands of the court a submission of this issue to the jury, and overrule appellant's assignments on this subject.
It was alleged by appellees that the peril of deceased was discovered by the operatives of the train in time to have prevented the collision, and the evidence justified the submission of this issue to the jury; and in charging thereon the court gave the following: "Or if you believe *591 from a preponderance of the evidence that the servants of defendant company operating the engine of the train which caused the injury, if any was inflicted, discovered him upon the track, and after such discovery the said servants failed to use all the means at hand consistent with the safety of the train, and by the use of ordinary care, to stop the train and prevent striking him, then you will find for the plaintiff Julia James, and assess her damages as hereinafter charged, unless you find for the defendant as hereinafter charged."
By its second proposition under this assignment appellant contends that "the charge of the court as given makes the defendant liable, regardless of whether or not the servants of defendant company operating the engine of the train discovered deceased's peril in time to have stopped the train and avoided striking James by the exercise of ordinary care and by the use of the means at their command, and makes the liability rest merely upon whether or not the servants of defendant exercised ordinary care to stop the train by means at command after discovering David James on the track. If when deceased's peril was discovered it was then too late to stop or check the train so as to save him from injury, the company was not liable on the issue of discovered peril."
There was evidence to the effect that when the deceased was first discovered by the trainmen the train was 200 feet from the crossing, and that a train of sixteen cars, such as was then being operated, could not be stopped under 200 feet; and it was also shown by said operatives that they stopped the train as soon as it was in their power to do so. While, on the other hand, there was testimony to the effect that the train in question could have been stopped within from 60 to 100 feet, so that the evidence was in direct conflict upon this issue, rendering it proper for the court to charge thereon. Therefore the question for our determination is as to whether the charge given was a correct presentation of the law upon this issue. The question is not an open one, but there is direct authority to the effect that the charge given was error. In the case of Missouri, K. T. Ry. Co. of Texas v. Eyer,
In view of the evidence upon this issue, we think the charge of the court complained of was error, in that it failed to also instruct the jury in this connection that, notwithstanding the fact they may have believed that the servants of appellant failed to use all the means at their command to stop the train, yet if they further believed that had they done so they could not have avoided injuring the deceased, then if they so believed to find for appellant, and we therefore sustain this assignment.
Appellee, however, urges that as appellant presented a different reason in its assignment from the one now under consideration, that it is therefore barred from insisting upon any other reason than the one so stated; but the contrary has been expressly held in Gulf, C. S. F. Ry. Co. v. Williams,
From what has heretofore been said the court did not err in refusing to give a peremptory instruction in behalf of appellant, as urged in its sixth assignment.
Special charge No. 6 was properly refused, because it wholly disregarded the issue of discovered peril, which was in the case.
We overrule the ninth assignment of error because there is no statement thereunder showing the pertinency of the charge presented, even if correct, which we are not prepared to admit.
For the error indicated the judgment is reversed and the cause remanded.
Reversed and remanded. *593