Baker v. Sparks

• Decision Date: 20 May 1921
• Docket Number: (No. 694.)
• Citation: 234 S.W. 1109
• Parties: BAKER v. SPARKS.
• Court: Texas Court of Appeals

Page 1109

234 S.W. 1109

BAKER v. SPARKS.

(No. 694.)

Court of Civil Appeals of Texas. Beaumont.

May 20, 1921.

Motion for Rehearing Denied November 23, 1921.

Appeal from District Court, Robertson County; John Watson, Judge.

Action by W. A. Sparks against Jas. A. Baker, as receiver of the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Henderson & Ranson, of Bryan, J. L. Goodman, of Franklin, and John M. King, of Houston, for appellant.

J. C. Scott, of Corpus Christi, K. W. Gilmore, of Houston, and Perry & Woods, of Franklin, for appellee.

WALKER, J.

Appellee was injured in a railroad crossing accident, and on a trial to a jury judgment was rendered in his favor for $2,500. We refer to Baker v. Streater, 221 S. W. 1039, a companion case with this case, for a full statement of the facts of the accident.

Appellant duly excepted to plaintiff's petition—

"wherein it is alleged that there was no flagman or other employee of the defendant stationed at said crossing to give warning of the approach of any train, for the reason that there is no ordinance or statute requiring the defendant to have a flagman stationed at said point, nor are there circumstances or facts pleaded in said petition that would require a flagman to be stationed at said crossing, and of this defendant prays judgment of the court."

He also excepted to the further allegation that such negligence was the proximate cause of the plaintiff's injury. No error is shown under these assignments. The issue thus raised by plaintiff's petition was not submitted to the jury. 4 C. J. 934. We should add further that this record reflects no judgment of the court on said exceptions. We are without authority to review the ruling of the trial court on exceptions to pleadings, where, as in this case, the only record of such ruling is by bill of exception. District Court Rules 53, 65, 142 S. W. xxi, xxii; Withers v. Crenshaw, 155 S. W. 1189; Ilseng v. Carter, 158 S. W. 1163; King-Collie Co. v. Wichita Falls Warehouse Co., 205 S. W. 748.

The issue of contributory negligence of the plaintiff was submitted to the jury by questions 4 and 5, which were as follows:

"(4) Did the plaintiff, W. A. Sparks, while approaching the said crossing, fail to exercise ordinary care to avoid injury from passing trains?"

"(5) If you should answer special issue No. 4 in the affirmative, then, and in that event only, answer this question: Did the failure of plaintiff, if he did so fail, to exercise ordinary care, while approaching said crossing, proximately cause, or contribute to cause, the injuries, if any, sustained by him?"

As a part of his charge, the trial court instructed the jury as follows:

"The duty of the public and a railway company are reciprocal to the rights of each other, made so by public necessity and convenience, and one approaching a railroad crossing must exercise proper precaution to avoid injury from passing trains."

The issue of contributory negligence was specially pleaded by defendant, and, as stating the general nature of his plea, we give the objections and exceptions to question 4:

"This question submits contributory negligence in a general way, but it does not submit any of the issues as pleaded by the defendant and as shown by the evidence, the defendant having the right to have such issues on the plea of contributory negligence submitted by the court in this case; and he fails to submit any of same. He does not submit the question of contributory negligence on the part of the plaintiff in failing to look and listen for an approaching train; he does not submit the question of his recent use of ardent spirits, nor does he submit the question of riding in an automobile approaching a crossing in not complying with the statutory requirements that same be slowed down to a speed within six miles per hour and continuing at said speed until all danger of the crossing is passed, nor does he submit the question of violation of the ordinance in riding an automobile at a greater rate of speed than eight miles an hour in the city of Franklin and other issues pleaded."

If the court was in error in thus submitting this issue, it was invited error, of which appellant cannot complain. He specially requested the court to give to the jury the following charge:

"The duty of the public and railway company are reciprocal to the rights of each other, made so by public necessity and convenience, and one approaching a railroad crossing must exercise proper precaution to avoid injury from passing trains."

It appears from an examination of this charge that the first part of it was given to the jury by the court, and we are not able to draw a distinction between question 4 as submitted and the one requested. Railway Co. v. Durrett, 187 S. W. 427. Proximate cause, as submitted in question 5, is not subject to criticism. A finding of negligence against the plaintiff, and that such negligence was the proximate cause of his injury, would have convicted him of contributory negligence. The court correctly defined to the jury "ordinary care" and "proximate cause." As they were not asked whether plaintiff was guilty of "contributory negligence," an abstract definition of that term could not have aided them in answering questions 4 and 5.

Appellant complains of the refusal of the court to submit to the jury his special questions calling for findings on the different issues of contributory negligence raised by his answer. The refusal of these questions was not error. He had...