64 Tex. 549 | Tex. | 1885
Lead Opinion
In a charge to the jury a long statement of the contents of the pleadings can serve no useful purpose. It rather confuses than enlightens the jury, increases the costs of litigation, and swells to endless proportions the record here and in the court below. In the single half page of the seven and one-half pages thus occupied in this record, the issues the jury were to pass upon could have been clearly and fully stated. In the statement of facts, the repeated statements of one witness cover thirty pages, all of whose material testimony could easily have been put upon five pages. Two of the assignments of error are utterly useless, as one of them attacking the charge of the court, refers us for a statement of the grounds to the motion for new trial, and the other complains generally of the error in overruling that motion. The record is not a comely one.
On the trial in the court below, the plaintiff’s counsel, after opening the case, and after defendant’s counsel had addressed the court on the law of the case and declined to address the jury, was permitted, over defendant’s objection, again to address the jury on the facts. If the second speech was better than the first, or presented anything new, the court would doubtless have permitted defendant’s counsel to reply. Bo injury is shown to have resulted to appellant from the course pursued, and we cannot see that the court below abused the discretion necessarily and properly vested in it in such matters.
The only other assignment of error made in compliance with the statute and rule, is the refusal of the court to give the special charges requested by appellant. In the brief, the statement in support of this assignment, required by rule 31, is wholly defective; but as it presents the only question properly remaining in the record, it has not been deemed necessary to set aside the submission and require a new brief.
An object of the special charges was to possess the jury of the information needed to enable them to determine whether Jno. B. Scott was or was not a passenger on appellant’s train when he was fatally injured on February 17, 1884. He was riding in a tool-car in a train made up by the yard-master at Longview, in which there was improperly placed, near the engine, a passenger coach to be hauled
Beveesed and demanded.
[Opinion delivered October 20, 1885.]
Rehearing
The judgment of the court below was reversed on the third assignment of error. That assignment was that the court erred in refusing to give the three special charges asked by appellant. The three special charges present in different phases the same proposition. But one error was committed in rejecting them, and that was sufficiently assigned. That this court erred in considering that assignment, as insisted upon in the motion for rehearing, is not sustained.
In his argument upon this motion for rehearing, counsel for appellee has earnestly urged the court to re-examine the record and reconsider the case. We have done this, and whilst we adhere to the conclusion reached-in the original opinion, that the judgment below should be reversed and the cause remanded for a new trial, we think it would be proper to add a few remarks, attention to which may conduce to an earlier termination of the suit.
It seems to be an undisputed fact that the breaking of the draw-head of the coach in the train upon which Scott was being transported occasioned the wreck in which Scott lost his life. It seems also to be proved that the draw-head was out of repair, and that the coach was improperly placed in the train near the engine. It is also shown that the draw-heads for coaches are not made as strong as those for freight cars. On these facts it becomes a question whether the wreck was caused by the defect in the draw-head or by its being improperly subjected to a strain not contemplated in its construction.
The master is bound to furnish machinery suitable for the work to be done with it. If he furnishes a defective draw-head, and in such use of it as would be proper, if it was not defective, an injury to his servant results from the fact that it is defective, the master is liable, unless the servant knew or might have known of the defect. In such case the master could not escape the liability by proof that the negligence of a fellow-servant of the injured employee contributes to the injury. On the other hand, if the defective draw-head is used by the negligence of a co-employee of the injured servant in a place or for a purpose for which, if it were not defective, it was not furnished by the master or in its construction fitted, and a wreck occurs by the breaking of the draw-head, which would not have broken if it had been sound, is the injury then in legal contemplation caused by the defect in the draw-head or by its improper use?
If Scott was a servant, these questions should be considered.
The judgment of the court below was properly reversed, and the motion for rehearing is therefore refused.
Motion for rehearing refused.
[Opinion delivered November 20, 1885.]