206 S.W. 708 | Tex. App. | 1918
Appellee, Kornegay, recovered judgment in tbe court below as damages on account of personal injuries sustained in alighting from a moving train operated by appellant railway company. Appellee was at tbe time in tbe service of tbe railway company as a laborer, in tbe work of ballasting tbe roadbed. He ate and slept with other laborers engaged in such service in boarding cars furnished by tbe railway company, at tbe gyp pit from which the ballast was taken. It was customary for tbe ballast train, after unloading at various points along the line of road, to stop at tbe gyp pit .to allow such laborers as bad accompanied it for tbe purpose of assisting in the work of unloading to alight at such place. On the day of tbe injury, appellee bad gone out with tbe ballast train, and tbe train, after unloading, and as it was returning to Lubbock past tbe gyp pit after dark, slowed down at such pit for tbe laborers on it to alight but did not stop. Appellee, Kornegay, fell in getting off and sustained tbe injuries for which he sued. Tbe evidence is sufficient to support tbe finding of tbe jury that tbe railroad company was negligent in failing to stop at tbe gyp pit. Tbe jury found that appellee was guilty of contributory negligence and on this account reduced tbe damages allowed him by one-balf. It is conceded that tbe case falls within tbe federal Etaployers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. g. Comp. St. 1916, §§ 8657-8665]).
“Was tbe negligence of the defendant or its trainmen, if any, the proximate canse of the injury, if any, to plaintiff?”
It was evidently not tbe intention of tbe trial court by tbe special charge to eliminate tbe issue of proximate cause, though a strict and literal adherence to tbe terms of tbe special charge might indicate this. Tbe court, in its general charge, had defined “proximate cause,” and bad, as we have stated, included such issue in the submission of tbe issue of negligence. Construing tbe charge as a whole, we do not think the jury was likely to have concluded therefrom that tbe court intended to eliminate tbe issue of proximate cause. Liquid Carbonic Co. v. Dilley, 202 S. W. 316; C., R. I. & P. Ry. Co. v. Reames, 63 Tex. Civ. App. 29, 132 g. W. 978. Tbe third proposition under this second assignment,
The third assignment complains of the charge wherein the jury is authorized to take into consideration certain stated elements of damage, without limiting such recovery to such damages as resulted proximately from the negligence of the defendant. What we have said in disposing of the second proposition under the second assignment is applicable in a measure to the determination of this assignment. The jury, in this connection, were further instructed that these elements of damage must have been sustained “as a direct and proximate result of the injury.” The jury having been instructed to find whether the negligence was the proximate cause of the injury, it follows, When these charges are construed together, that the jury were only allowed to assess such damages as were the proximate result of the negligence.
In the case of C. & O. Ry. Co. v. De Atley, 241 U. S. 310, 36 Sup. Ct. 564, 60 L. Ed. 1016, a brakeman, in boarding a fast moving train, was thrown therefrom and injured. The engineer operating the train knew that the brakeman was to board it at the place where the attempt was made and was negligent in so increasing the speed of the train as to make it unsafe for the brakeman to get on it, and .it was held that an issue of an assumption of the extraordinary risk thus created by the negligence of the engineer of the train was presented. We cannot see any distinction between that case and this one so far as the principle of law applicable to the question here suggested is concerned. Appellee also suggests that the evidence is insufficient to raise this issue on this phase of the law. Again, appellant has made no statement of facts under the assignment, and appellee asserts that there is no evidence to show that appellee appreciated the danger that confronted him in getting oft the train as he did. But assuming that it is true that there was no direct evidence to this effect, a jury- might have found that the danger was so obvious that appellee was bound to have appreciated it, so that we believe that the circumstances are sufficient to have presented a question of fact for the jury on this issue. C. & O. Ry. Co. v. De Atley, supra.
The pleading raising an issue on one phase of the law of assumed risk is not, in our opinion, sufficient to require the submission of an issue of an entirely different phase thereof. Authorities above cited, particularly I. & G. N. Ry. Co. v. Garcia, supra. Por these reasons we overrule these assignments.
We have found no error assigned which in our opinion requires a reversal of the case, and the judgment will be affirmed.
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