28 S.W. 252 | Tex. App. | 1894
Appellant, as widow of James Lynch, deceased, for herself and as next friend of the minor children of herself and said Lynch, brought this action to recover of defendant damages resulting to them from the death of their husband and father, alleged to have been caused by the negligence of the defendant.
From a judgment in favor of plaintiffs, this appeal is prosecuted.
There are many assignments of error, all of which have been examined; but, as the case is to be reversed, it is necessary only to mention *516 in detail those which we hold to be well taken, and such others as may develop questions which may be of importance in another trial, and which should therefore be decided.
The negligence of defendant was charged to have consisted in having, across a river crossed by its road, a defective and unsafe bridge, through which the train upon which Lynch is claimed to have been riding as a passenger fell, inflicting the injuries from which death resulted.
One of the defenses was, that the train was one used exclusively for the carrying of freight, upon which passengers were, by regulation of the company, forbidden to ride, and that Lynch was not a passenger, but a trespasser thereon.
During the trial the defendant introduced one Berry, an engineer, who testified, as an expert, to the proper construction and safe condition of the bridge. On cross-examination, plaintiffs' counsel was allowed, over defendant's objection, to prove by him that about a year after the occurrence in which Lynch lost his life, an iron bridge was put in where the wooden one, which had given way, had stood. There was no other testimony or fact in evidence in rebuttal of which this testimony was admissible. Its only bearing was to convey to the jury the suggestion that the act of defendant and of the witness, in putting in a more substantial bridge where that under investigation had been, was a confession of the unfitness or insufficiency of the former. That such evidence is inadmissible for such a purpose is now so well established in this State that citation of authority is unnecessary. Of course, such evidence may sometimes be proper to rebut or explain some other fact put in evidence, as is illustrated in the following cases: Railway v. Johnson,
Eleven special charges were requested by defendant, two of which were given and the rest were refused. The substance of several of those refused was contained in the general charge; others embraced propositions which were sufficiently stated in the charge, with the addition of others which were omitted. The practice of requesting a great number of instructions, some of which couple together rules which have been already stated to the jury with others which have not been given, so that the court can not give the latter without undue repetition of the former, is not to be commended. But some of the requested instructions contained propositions which were correct in themselves, were applicable to the facts, and were not embraced in the charge given.
The principal question for the decision of the jury was, whether or not Lynch, when killed, was rightfully on the train as a passenger. It was shown by uncontradicted evidence that defendant had established *517 and given reasonable publicity to a regulation forbidding the taking of passengers upon its freight trains, and notifying the public that its servants were forbidden to waive or relax this rule. The plaintiff introduced evidence showing that on a number of occasions persons had been known to ride on freight trains, paying fare to the conductor as passengers; and one witness stated, that "it was a very common thing for passengers to ride on freight trains at the time." On the other hand, the defendant showed that watch was kept by its superior officers to detect any violations by conductors of this rule, and such as were ascertained to have received passengers contrary to it, had been discharged.
The charge sufficiently instructed the jury as to the right of defendant to make such rules, and as to their effect when made, and informed them that the presumption of law is, that one claiming to be a passenger upon such train would be a trespasser without lawful right to be there, and the company would not be liable for injury he might receive while thus unlawfully upon its train; but that this presumption might be rebutted by proof showing that, notwithstanding such rules, with the knowledge, either actual or constructive, of the company, and without objection on its part, persons are habitually permitted to take passage upon such train by the employes in charge thereof; and that the company, through its proper officers, having the right to make such rules, may through the same officers relax or dispense with them; and that the public are authorized to consider such rules dispensed with, when not practically enforced, or when the same are habitually and publicly violated by the servants of the company. That these instructions are correct, where they have application, is not questioned by appellant. They contain all that is essential of special charge number 4, except the proposition, that a conductor has not authority to relax such regulations as that in question. Of that we will treat further on.
Special charges numbered 2 and 3 were, we think, correctly refused, because, in connection with the general charge,they would have confused the issue. The wording of them was well calculated to produce the belief that there must have been some specific authority from a corporate officer for passengers to ride upon freight trains, or some act of a corporate officer dispensing with the rule; when, as correctly charged, if the carriage of passengers on freight trains was so common and habitual that the proper officers ought to have known it, and they still permitted it to go on, the public could consider the rule suspended in its operation.
It is still true, however, that the conductors could not, by force merely of their own disobedience of the rule, destroy its effect. The principle stated assumes an acquiescence on the part of defendant, implied from its failure to exact obedience to its rules, where the nonobservance of them is so open and habitual that it ought to know of and be deemed to assent to the practice. Under such circumstances, *518 it is held out to the public as a carrier of passengers upon its freight trains, and will not be allowed to shield itself from liability under a rule which it has thus permitted to fall into disuse. But where the facts show that, though there has been occasional or even frequent violations of the rule by trainmen whose duty it is to observe them, the company has not permitted them, but has used reasonable efforts to suppress them and to enforce obedience, it can not, without its consent and against its published undertaking, be put in the attitude of a carrier of passengers by the wrongful acts of its conductors and of travellers dealing with them.
The evidence in this case called for a pointed statement of the law in this particular, but no such qualification of the doctrine stated in the charge is contained in the instructions given. Indeed, the paragraph of the charge in which the law is directly applied to the facts (which is too lengthy to be appropriately inserted) was, when addressed to the evidence, calculated to create the impression that mere habitual violation of the rule by conductors, whatever may have been the efforts of the defendant to enforce the rule, would charge it with the duty of carrying passengers upon its freight trains.
The theory of the defense was not affirmatively stated.
The fifth, sixth, seventh, and ninth special charges, requested by defendant, were correct in law, were applicable to the evidence, and, as they supplied omissions in the general charge, should have been given.
For the errors indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.
