111 S.W. 1098 | Tex. App. | 1908
Appellant prosecutes this appeal from a judgment of four thousand dollars entered against it in the District Court of Bosque County in favor of the appellee, D. R. Johnson, as damages for personal injuries. On a former appeal a judgment adverse to appellee, in accordance with a peremptory instruction, was reversed, as *129
will fully appear from the opinion published in the 42 Texas Civ. App. 604[
Appellee's case, as made by his pleadings and as supported by evidence in his behalf, in substance, is that about October 15, 1902, he was in appellant's employ at the town of Cisco, in Eastland County; that he received from appellant's master mechanic a telegram requiring him to go from Cisco to Waco; that in obedience thereto he proceeded upon one of appellant's passenger trains operated between the points named, and when a few miles out from Cisco the conductor of the train directed that he leave the train at Walnut Springs, some distance beyond in the direction of Waco, and there procure a formal pass authorizing his passage; that this direction was later also given by appellant's master mechanic, who later boarded the same train at an intermediate station; that pursuant to such order, upon the arrival of the train at Walnut Springs, he disembarked and proceeded to the proper office for obtaining passes, as directed, but that before he had been able to secure the same the train started and in his effort to retake passage, his foot slipped upon some rolling substance on the depot platform or approach and he was thrown under the train and injured, as alleged. Negligence was charged in respect to the construction of the depot platform, and in the failure of the conductor to stop the train at Walnut Springs a reasonable time within which appellee could procure the pass sought.
Appellee objects to a number of the assignments of error on the ground that the assignments themselves contain numerous reasons for the objection made, some of which are contradictory. The assignments, however, are mainly to specified clauses of the court's charge, which, without further specification, have been held sufficient to invoke consideration. We therefore conclude that the assignments should be considered, rejecting all reasons given in the assignments that have not been carried forward by appropriate proposition thereunder.
So proceeding, it is to be noted that in appellant's first assignment objection is made to the court's definition of contributory negligence, and in the same connection to the tenth paragraph of the court's charge in applying that issue to the facts. The court defined contributory negligence as follows: " 'Contributory negligence' means where the plaintiff does some negligent act or omits to perform some act which, co-operating with some negligent act or omission on the part of the defendant, contributes to and is the proximate cause of the injury." The tenth paragraph is as follows: "If you believe from the evidence that plaintiff, in leaving said train to get said pass and in attempting to board said train under the circumstances and conditions then existing and surrounding him, did not act with that degree of care, discretion or prudence for his own safety that a person of ordinary care would have done under the circumstances, and further believe from the evidence that such acts on the part of the plaintiff were the cause of his injury, then he would be guilty of contributory negligence and can not recover, and you should find for the defendant." *130
The evidence clearly raises the issue of contributory negligence. That of appellee indicates experience on his part in boarding moving trains and that at the time he endeavored to get upon the train it was moving only four or five miles per hour. Other witnesses, however, who testified in behalf of appellant would have authorized an inference that it was traveling at a rate of from eight to twelve miles per hour, and the main contention on the part of appellant is that the charges quoted submitted the issue of proximate cause when it was not, under the evidence, in issue, contrary to the ruling of our Supreme Court in Gulf, C. S. F. Ry. Co. v. Rowland,
There would seem to be much force in the suggestion that the court in the tenth clause of the charge improperly placed the burden upon appellant to show that appellee's contributory negligence was "the cause of his injury." It would only have been necessary, of course, for appellant to show that the negligent acts of appellee, if any, proximately contributed to his injury. But this objection in principle seems to be treated by appellant as the same as that involved in the objection first discussed, and in view of the character of the proof and of the requested charge given, we do not feel prepared to hold that the inadvertent omission, as it would seem, of the court to use the term "proximate" immediately before the term "cause," in the tenth paragraph, requires a reversal. If the jury adopted the trend of appellant's evidence on this issue they could but believe that appellee's own negligence was not only the cause, but the proximate cause of his injury. On the contrary, if *131
the jury credited appellee's testimony on the issue, as they evidently did, they could hardly find him guilty of contributory negligence. Besides, it is to be noted that the charge was one authorizing a verdict for defendant only, and correct, as far as appellant can complain, and fairly within the rule applied by our Supreme Court in disposing of a charge submitting the issue of contributory negligence in the case of Chicago, R.I. G. Ry. Co. v. Johnson,
Under the second assignment it is insisted that the court submitted an erroneous measure of damages, the contention being that the court's charge authorized a double recovery. The charges objected to are as follows: "12. If, under the foregoing instructions, you find for the plaintiff, you should allow him such sum in money as damages as, in your judgment, if paid to him in cash at the present time, would fairly compensate him for the injuries. if any you find he has sustained.
"13. In estimating and arriving at the sum or amount of damages, if any, which you may allow plaintiff, you should take into consideration the physical and mental suffering of the plaintiff, his loss of time, permanent injury, if any, his diminished capacity to earn money, if you find that his capacity to earn money has been diminished, resulting from the injuries, which you may find he has sustained."
We think the objection made to these clauses, which are treated together, should be overruled. The twelfth clause manifestly gave the proper rule, by which it was the duty of the jury to be guided in compensating appellee in the event they found for him, and we think the thirteenth paragraph, immediately following, amounted in substance but to a direction to the jury to consider all of the evidence on the issue. Unlike some of the charges condemned in the authorities cited by appellant, the jury were not expressly directed to find damage upon all grounds specified in the thirteenth paragraph, but merely, as before stated, to consider these elements of which proof had been made without objection in determining what would fairly compensate appellee. See Galveston, H. S. A. Ry. Co. v. Fink, 44 Texas Civ. App. 544[
Under appellant's third and fourth assignments numerous objections are made to the fourth and fifth paragraphs of the court's charge, which are too voluminous for insertion. We deem it sufficient to say that the charges referred to were not erroneous, or, at least, not prejudicial in submitting the issue of whether appellee was a passenger. We think he was a passenger, as indicated in our opinion on a former appeal, but if not, the court nowhere in his charge required of appellant the exercise of that high degree of care applicable to passengers. Nor were the charges objectionable in requiring appellant to give plaintiff a reasonable time in which to procure passes, and return to and board the train, before putting it in motion. The authority of appellant's officers to direct him to get passes at Walnut Springs does not seem to be questioned. It seems to us that it must be assumed that they had such authority, and, if so, the least that could be required of appellant was to give appellee a reasonable time to accomplish the thing he had been directed to do.
Nor is it clear by any means that the record sustains appellant's contention *132 that the court submitted the issue of whether the approaches and platforms to the train had been safely constructed and maintained in reasonable condition. It certainly was not done as a distinct ground of recovery. But, if submitted at all, the issue was invited by appellant's special charge No. 8. As we construe the charge, it on the whole only submitted the issue of negligence on appellant's part in failing to hold the train a reasonable time, the theory of the charge, as we construe it, being that, in the event of negligence on appellant's part in this respect, appellee would be entitled to recover in the absence of contributory negligence by him. We think this theory correct. In that event it is entirely immaterial whether the rolling substance, upon which appellee testifies he was caused to slip, had been negligently permitted to remain upon the platform or not. If it was there, the fact that it entered into the cause of the injury would in no way lessen the liability for appellant's failure to delay the train a reasonable time, and it seems certain that the jury could not have inferred, from the clauses of the court's charge under consideration, that negligence in respect to the platform was assumed, for in the sixth clause of the court's charge the jury were expressly instructed that this issue was for them alone.
Numerous other objections are made to various clauses of the court's charge, but we think none of the objections are well taken. The issues as a whole seem to have been fairly submitted to the jury, and, without further discussion of objections to the charges, we think all objections thereto should be overruled.
Appellant relied upon, and offered in evidence, the following release:
"The State of Texas, } County of McLennan. } Know all men by these presents: —
"That whereas, on the 15th day of October, 1902, I, D. R. Johnson, of Whitney, Hill County, Texas, while acting in the capacity of passenger on the Texas Central Railroad, received personal injuries as follows:
"Head injured and foot mashed while attempting to board train No. 2, while moving at Walnut Springs; left hand injured, two bones broken.
"Now, therefore, in consideration of one dollar to me in hand paid by Texas Central Railroad Company, the receipt of which is hereby acknowledged, as full and final compensation for said injuries, I do hereby release and forever discharge the Texas Central Railroad Company from any and all claims for damages of whatever nature or character which have accrued to me, or which may hereafter accrue to me by reason of the injuries aforesaid, and I do hereby admit that the said injuries and damages were not the result of any negligence on the part of the Texas Central Railroad Company, or any of its officers, agents or employes, but the same was the result of an accident which may happen to any person acting in the capacity of passenger on any railroad.
"Given under my hand at Waco, Texas, this the 3d day of December, 1902.
"(Signed) D. R. JOHNSON." *133
It was admitted that the recited consideration for this release was unpaid, and the consideration, as pleaded by appellant, was that "appellee would be permitted to remain in the service of the company under the same terms of employment as existed before the accident to him, to wit, employment by the month, and subject to the right of the defendant to discontinue his services at any time for any cause." The release was clearly void under the decisions. Missouri, K. T. Ry. Co. v. Smith,
The remaining assignment, that we deem necessary to specifically mention, rests upon the contention that "the evidence conclusively shows that the injuries of the plaintiff were due to his own contributory negligence in attempting to board the defendant's train at an unusual and dangerous place," etc. We think, however, that the evidence was such as made the issue one for the jury. As stated, appellee testified in substance that, upon his arrival at Walnut Springs, he forthwith repaired to the warehouse of appellant, in which the master mechanic had his office at which passes could be obtained, and that before the agent writing them out had completed them, appellee heard the bell ringing, and immediately started out and toward the approaching train, and before it had attained a rate of speed in excess of four or five miles an hour he secured hold upon the hand railings of the coach, when his foot slipped upon some rolling substance, and he was thrown under the revolving wheels. We do not think it can be said that this evidence conclusively shows contributory negligence on appellee's part.
All assignments are accordingly overruled, and the judgment affirmed.
Affirmed.
Writ of error refused.