Barnhart v. Kansas City, M. & O. Ry. Co. of Texas

• Decision Date: 15 March 1916
• Docket Number: (No. 2446.)
• Citation: 184 S.W. 176
• Parties: BARNHART v. KANSAS CITY, M. & O. RY. CO. OF TEXAS.
• Court: Texas Supreme Court

Page 176

184 S.W. 176

BARNHART v. KANSAS CITY, M. & O. RY. CO. OF TEXAS.

(No. 2446.)

Supreme Court of Texas.

March 15, 1916.

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

Action by David Barnhart against the Kansas City, Mexico & Orient Railway Company. The Court of Civil appeals (145 S. W. 1049) reversed a judgment for plaintiff, and he brings error. Judgment of Court of Appeals reversed, and judgment of district court affirmed.

Hardwicke & Hardwicke, of Abilene, Woodruff & Woodruff, of Sweetwater, and Theodore Mack, of Ft. Worth, for appellant. H. G. McConnell, of Haskell, and H. S. Garrett and Blanks, Collins & Jackson, all of San Angelo, for appellee.

YANTIS, J.

The plaintiff in error, David Barnhart, recovered a judgment in the district court of Nolan county, Tex., for personal injuries received by him while working as a brakeman for the defendant in error in its yards at Sweetwater, Tex. At the particular time of the injury which was received by him he was descending a ladder on the side of a box car, and while doing so he came in contact with an iron standpipe several inches in diameter which had been constructed by the defendant in error near the track on which the plaintiff in error was riding. The injury resulted in the amputation of his arm. He alleged that the defendant railway company was guilty of negligence for a failure to exercise ordinary care to furnish him a reasonably safe place in which to work, in that it constructed said standpipe in such close proximity to its track along which plaintiff was required to discharge his duties as to bring him in contact therewith, and that in the exercise of ordinary care the defendant railway company should have placed the same a sufficient distance from the track to avoid injuring him while engaged in the discharge of his duties; that by reason of this negligence on the part of said railway company, while descending said ladder in the discharge of his duties, he came in contact with said standpipe, and was thereby thrown from said ladder, and fell under the moving train, causing the injuries complained of.

The defendant railway company answered with a general denial; also with a special denial that the standpipe had been erected or permitted to stand in close proximity to its tracks; that said standpipe was erected by it for the purpose of obtaining water with which to operate its engines; and that it was properly constructed in said yards, and was erected a reasonably safe distance from each of its tracks. The defendant railway company further alleged that, if Barnhart did come in contact with said standpipe, it was the result of his own negligence in projecting his body an unreasonable and unnecessary distance from the side of the car. The defendant railway company further pleaded as one of its defenses that the injury which was received by Barnhart was assumed by him as one of the risks ordinarily incident to his employment. It further pleaded as another defense that the location of the standpipe was patent and obvious, and that the plaintiff had observed the same, and was familiar with its location, and that he expressly assumed the risk of his injuries. The defendant in error offered no evidence in support of its defenses thus pleaded, except such as may have been adduced by the plaintiff himself while testifying on the witness stand in his own behalf, and Barnhart's application for employment, which was introduced by the defendant in error, by which Barnhart agreed that he would be exposed to great danger in the course of his employment, and that he assumed for himself the risk of such danger.

The case was tried by a jury, and Barnhart was allowed damages. The case was submitted to the jury on a general charge, and not upon special issues. From the judgment of the district court the defendant railway company appealed to the honorable Court of Civil Appeals for the Second District. In that court the case was reversed and remanded; that court sustaining several of the assignments of error presented therein by the defendant railway company. One of its holdings was that the following portion of the court's main charge was erroneous:

"You are further charged that the burden is upon the defendant to show its defense of assumed risk by a preponderance of the evidence, no matter by which side adduced, to be considered in its entirety."

The honorable Court of Civil Appeals held in relation to said charge that it was erroneous in that it commanded the jury to consider the evidence in its entirety, and thereby compelled the jury to consider all the evidence, when it was within their province to exclude any portion of the evidence from their consideration. This court granted a writ of error on the application of Barnhart, on the ground of conflict; said holding being in conflict with the holdings of other Courts of Civil Appeals in the cases of M. K. & T. Ry. Co. v. Rothenberg, 131 S. W. 1157; Railway v. Worcester, 45 Tex. Civ. App. 501, 100 S. W. 990; Railway v. Lester, 84 S. W. 404; and Electric Co. v. Murray, 32 Tex. Civ. App. 226, 74 S. W. 51.

We think the honorable Court of Civil Appeals was in error in its holding in this case on said question. We do not think the court's direction to the jury, contained in said charge compelled the jury to give effect to any portion of the evidence. Clearly it would have been error to do so. The court commanded the jury to consider the evidence in its entirety, no matter by which side adduced. The plain purpose of this charge was to protect the defendant railway company from an injustice which might otherwise have resulted to it. Without this charge the jury might have conceived it to be their duty to exclude, when considering the defenses, any evidence not introduced by the defendant. The defendant had specially pleaded the defense of assumed risk in two separate pleas, and in two different forms — one as a risk ordinarily incident to the employment; the other as a risk that was obvious, and known to Barnhart. It had not placed a witness upon the stand to establish either of said defenses. It contends now, and had a right to contend in the trial court, that a portion of the evidence of the plaintiff himself was sufficient, in connection with Barnhart's application and contract of employment, to establish said defenses. Yet the jury, unless specially instructed upon it, might have fallen into the error of excluding, while considering such defenses, the evidence given by the plaintiff himself, because he was not introduced as a witness by the defendant railway company. It was to guard against this that the trial court, in a spirit of fairness towards the defendant in error, charged the jury to consider the evidence on the question of assumed risk, no matter by which side adduced, in its entirety. We do not think the expression "to be considered in its entirety" in any way invaded the province of the jury. It was not a command to them to give effect to any portion of the evidence. It was merely a command to consider the evidence. This is not equivalent to a direction that the jury should give effect to the evidence in its entirety. The charge allowed the jury to discard any of the evidence which they might believe, after considering it, was entitled to no weight, and to exclude all testimony that the jury might consider was not credible, and at the same time to give effect to any evidence they considered of value. It would seem to us difficult, if not impossible, for the jury to pass upon the credibility of the witnesses, and the weight to be given to their testimony, as the law requires them to do, without first considering it. In considering the evidence under this charge they were allowed the utmost freedom in giving or not giving effect thereto in arriving at their verdict. It is worthy of note that the charge complained of is immediately followed by that portion of the court's charge which told them that they were the "sole judges of the credibility of the witnesses, the weight to be given to the testimony, and of the facts proved." We think the charge complained of, when properly construed, and especially in the light of the specific instruction to the jury that they were the sole judges of the credibility of the witnesses, and the weight to be given to their testimony, was not misleading, and that, instead of being harmful to the defendant railway company, by its plain meaning it was beneficial to it in directing the jury to consider in behalf of the defendant some of the evidence that was introduced by the plaintiff which they otherwise might not have felt it their duty to do.

The further contention is made by the defendant in error that said charge is erroneous in placing the...