Baker v. Shafter

• Court: Texas Supreme Court
• Writing for the Court: Spencer
• Citation: Baker v. Shafter, 231 S.W. 349 (Tex. 1921)
• Decision Date: 01 June 1921
• Docket Number: (No. 213-3312.)
• Parties: BAKER v. SHAFTER.

231 S.W. 349

BAKER v. SHAFTER.

(No. 213-3312.)

Commission of Appeals of Texas, Section A.

June 1, 1921.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Victor Shafter against the International & Great Northern Railway Company and James A. Baker, its receiver. Action dismissed as to the Railway Company. Judgment for plaintiff, and the receiver appealed to Court of Civil Appeals, which affirmed the judgment (208 S. W. 961), and the receiver brings error. Reversed and remanded.

Jno. M. King, of Houston, and Marshall Eskridge, F. C. Davis, and Arthur V. Wright, all of San Antonio, for plaintiff in error.

J. D. Childs, of San Antonio, and Martin Faust, of New Braunfels, for defendant in error.

SPENCER, J.

Victor Shafter instituted this suit to recover of the International & Great Northern Railway Company and its receiver, James A. Baker, for personal injuries alleged to have been sustained by reason of the negligence of the defendants. The answer was a general denial, and a plea of contributory negligence. The suit was dismissed as to the railway company.

Upon the issue of liability, the court submitted but two issues to the jury, both of which were answered in the affirmative. They are:

"No. 1. Was the defendant, James A. Baker, receiver of the International & Great Northern Railway Company, his agents and employés, guilty of negligence in operating its engine at the time and place, under the circumstances, in running its engine over the plaintiff and inflicting the injuries which you may find from the evidence were so inflicted on the plaintiff?

"No. 2. Was the plaintiff guilty of negligence in attempting to cross the railroad tracks of the defendant at the time and place and under the circumstances which you may find from the evidence he so undertook to cross said tracks when he was struck by the engine of the defendant?"

The court rendered judgment for plaintiff in the sum of $3,000, and, upon appeal, the Court of Civil Appeals affirmed the judgment. 208 S. W. 961.

It will be observed that, in each of the special issues submitted, the element of proximate cause was omitted. It also appears that neither of the parties requested a finding upon this issue, and that the only objection to the special issues submitted was that by plaintiff in error to special issue No. 1—the objection being that there was no evidence warranting its submission.

Plaintiff's pleading properly raised the issue of defendant's negligence as the proximate cause of the injury, and defendant's pleading specifically charged that plaintiff's contributory negligence was the proximate cause thereof. In the absence of any objection to the special issues submitted, and the failure of the parties to request special charges correctly submitting the issue, it will be presumed that the issues were in conformity to the issues joined by the pleadings and the evidence, and the answers thereto will be interpreted in the light of the issues tendered and relied upon for recovery. If, therefore, we treat the issues submitted as embracing the only theory relied upon by plaintiff for recovery, it would follow that, as the jury found that plaintiff was guilty of negligence, such negligence bars a recovery. However, plaintiff contends that, as the pleadings and the evidence raise the issue of discovered peril, all facts necessary to support the judgment of the trial court will, under article 1985, Revised Civil Statutes, be deemed as found, thus rendering the finding of the jury that plaintiff was guilty of negligence immaterial.

The honorable Court of Civil Appeals held that, while there was no specific plea of discovered peril, it is involved in the general issue of proximate cause, and raised in a general way by the allegations that the operative in charge of the engine failed to stop it, and that, as there was evidence upon which a finding sustaining such an issue could be predicated, therefore, in support of the trial court's judgment, plaintiff's negligence should be treated as the remote, and not the proximate, cause of the injury.

The doctrine of discovered peril involves three elements, viz: (1) The exposed...