Fort Worth & D. C. Ry. Co. v. Morrow

• Decision Date: 07 November 1923
• Docket Number: (No. 2196.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: FORT WORTH & D. C. RY. CO. v. MORROW.
• Court: Texas Court of Appeals

255 S.W. 674

FORT WORTH & D. C. RY. CO. v. MORROW.

(No. 2196.)^*

Court of Civil Appeals of Texas. Amarillo.

November 7, 1923.

Rehearing Denied November 21, 1923.

Appellant's Motion for Rehearing Denied November 28, 1923.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Action by Laura Morrow against the Fort Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Thompson, Barwise, Wharton & Hiner, of Fort Worth, and Turner & Dooley, of Amarillo, for appellant.

L. C. Barrett, Marvin Jones, and C. B. Reeder, all of Amarillo, for appellee.

RANDOLPH, J.

This is the second appeal in this case, and the opinion on the former appeal will be found in 235 S. W. 664. We adopt the statement of the case as made in that opinion, and will make only such additional statements as are necessary to make clear our rulings upon the questions discussed herein.

We are confronted with questions arising upon error assigned in the main charge of the court, upon the answers of the jury to issues submitted, upon the refusal of requested issues, and of the refusal of a peremptory instruction requested by appellant. In addition to the main charge the trial court submitted to the jury 24 special instructions requested by the appellant, and refused 13 requested by it. Out of this very abundant record appellant has carved numerous assigned errors, only a few of which we think it necessary to discuss.

The first question presented to us in the brief is one of error on the part of the trial court in failing and refusing to render judgment for appellant upon the answers of the jury to appellant's special issue No. 11. This issue, as given to the jury, is as follows:

"Should a person of ordinary care, as that term is defined in the main charge in paragraph 1, thereof, seeing the alleged defects, if any, or any of them, to the car in question, have reasonably foreseen and anticipated that said defects or any of them, if there were any such, would render the car in question dangerous to any one attempting to dump same, under the circumstances shown by the evidence herein?"

It is urged by appellant that the jury having answered this question, "No," it would not be liable for the death of deceased.

It will be observed that this issue is so worded that if it were answered "No" an exoneration from liability can be claimed by appellant, and if it was answered "Yes," then it can be claimed that the deceased should have reasonably foreseen and anticipated that the defects would render the car unsafe to work with. We do not mean to say that such was the intention of the party drafting this issue, but we do say that such is the effect of same being answered "Yes" or "No." As submitted to the jury, in practical effect, two separate issues are presented in one. One issue is that of ordinary care on the part of deceased, and the other is ordinary care on the part of his employer, the appellant. The status of the parties is not to be passed on from the same angle.

Article 1984a, V. S. C. S. of Texas, requires that special issues shall be submitted distinctly and separately and without being intermingled with each other, so that each issue may have its separate answer. H. E. & W. T. Ry. Co. v. Adams, 63 Tex. 206; Interstate Casualty Co. v. Hogan (Tex. Civ. App.) 232 S. W. 355, and authorities therein cited.

A judgment for appellant was not proper under this issue and answer. The jury, in answer to preceding questions, found that the injury he received in dumping the car had caused the death of deceased; that the dumping apparatus so used by him was defective at the time deceased was killed; that the furnishing of the car with its dumping apparatus in the condition it was in at the time deceased was killed was negligence on the part of the defendant; that such negligence of defendant was the proximate cause of the death of deceased; that deceased was not guilty of negligence; that deceased was not guilty of contributory negligence; that deceased had not assumed the risk of being injured or killed; that the death of deceased was not the result of an accident; that the cogs on the machinery operating the dumping apparatus were rusty and worn; that such defects were such as were discoverable by an ordinary inspection; and that there was no evidence of an inspection having been made.

Answering special issues submitted by appellant, the jury also found that the cogs were worn as claimed by plaintiff, that deceased did not know this. From these and other answers of the jury it is clear that the jury, in answering the special issue here in question, applied it to the conduct of the deceased as to whether he should have reasonably anticipated injury or...