100 S.W.2d 1077 | Tex. App. | 1937
This suit was instituted by appellant, Sam Williams, against appellee, Texas & New Orleans Railway Company, to recover damages for personal injuries which he alleged jhe had sustained as the proximate result of various acts of negligence on the part of appellee. Appellee pleaded in general terms contributory negligence on the part of appellant.
The case is before us without a statement of facts. The transcript as a whole indicates that appellant was returning home about 9 o’clock at night along College street in the city of Waxahachie; that when he reached a point where said street was crossed by appellee’s railroad a long freight train was about to pass, or was actually passing, across said street; that appellant was struck by said train, or by something projecting therefrom, knocked under the train, and suffered the loss of both his legs.
The case was submitted on special issues, ■in response to which the jury found that appellant was “run upon, struck and injured” by one of appellee’s freight trains; that appellee’s employees operated said train at the time at a rate of speed in excess of 20 miles per hour; and that they
Opinion.
Appellant presents a group of propositions in which he contends, in substance, that he could not be deemed in law to be negligent in failing to use ordinary care to avoid a particular danger, unless -he knew of the particular situation which created such danger, or ought to have known of the same. Based on such contention, appellant insists that the court should have submitted whether he knew, or ought to have known,.that objects projected from appellee’s train which rendered his position at the time one of danger, and that, in the absence of such submission and an affirmative finding thereon, submission of any of the issues on contributory negligence as above recited constituted error and rendered findings of the jury in answer thereto immaterial. Appellant presents a further proposition that the submission of said several issues- on contributory negligence as hereinbefore recited placed undue emphasis upon appellee’s said defense and necessarily prejudiced appellant's cause before the jury, and was calculated to leave the impression upon the jury that the court was unfavorable to appellant and favorable to appellee.
As a general rule, assignments of error complaining of the giving or refusing of instructions or of the action of the court in submitting or failing to submit special issues cannot be considered in the absence of a statement of facts. The reason which has been given for the rule is that, in the absence of evidence, the appellate court cannot say that under the facts the action of the court with reference to them was prejudicial, even though it was erroneous. 3 Tex.Jur. p. 551, § 387. An exception to such rule exists when the charge given, taken in connection with the pleadings and the verdict, is so apparently erroneous as to leave no doubt that the finding of the jury must have been controlled by it. 3 Tex.Jur. p. 556, § 390; McGaughey v. Bendy, 27 Tex. 534; Ross v. McGowen, 58 Tex. 603, 607, and authorities there cited; Marx & Kempner v. Caldwell, 62 Tex. 64, 65; Freiberg, Klein & Co. v. Lowe, 61 Tex. 436; Texas & P. Ry. Co. v. McAllister, 59 Tex. 349, 362; Austin St. Ry. Co. v. Calhoun (Tex.Civ.App.) 240 S.W. 327, 330, par. 6; Luna v. Missouri, K. & T. Ry. Co. (Tex.Civ.App.). 73 S.W. 1061; Petty v. Morgan, 53 Tex.Civ.App. 584, 116 S.W. 141, 142 (bottom 2nd column); Smyer v. Fort Worth & D. C. Ry. Co. (Tex.Civ.App.) 254 S.W. 336, 337, par. 4; International & G. N. R. Co. v. Hood, 55 Tex.Civ.App. 334, 118 S.W. 1119, par. 1; Hill v. Gulf, C. & S. F. Ry. Co., 80 Tex. 431, 435 (bottom page), 15 S.W. 1099.
Recurring to appellant’s first contention, we cannot, absent a statement of facts, say that the evidence did not show that a reasonably prudent person, standing where appellant stood, would have anticipated that objects might extend from the passing train and might strike him there, nor that appellant did not know, or ought not to have known, of the possibility of such striking and resulting danger to himself. 45 C.J. p. 653, § 27; Id. p. 947, § 507. The jury not only found that appellant was negligent in the several instances hereinbefore recited, but also that each such instance of negligence was a proximate cause of his injury. The doctrine of foreseeableness is an essential element of proximate cause. 45 C.J. p. 913, § 483. Neither can we, absent a statement of facts, say, with reference to appellant’s
The judgment of the trial court is affirmed.