Freeman v. Galveston, H. & S. A. Ry. Co.

• Court: Texas Supreme Court
• Writing for the Court: Speer
• Citation: Freeman v. Galveston, H. & S. A. Ry. Co., 285 S.W. 607 (Tex. 1926)
• Decision Date: 16 June 1926
• Docket Number: (No. 606-4440.)
• Parties: FREEMAN v. GALVESTON, H. & S. A. RY. CO.

285 S.W. 607

FREEMAN v. GALVESTON, H. & S. A. RY. CO.

(No. 606-4440.)

Commission of Appeals of Texas, Section B.

June 16, 1926.

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

Action by Max Freeman against the Galveston, Harrisburg & San Antonio Railway Company. A judgment for plaintiff was reversed, and the cause remanded by the Court of Civil Appeals on rehearing (273 S. W. 979), and the plaintiff brings error. Judgment of the Court of Civil Appeals reversed, and that of the trial court affirmed.

Fouts & Patterson, of Houston, for plaintiff in error.

Baker, Botts, Parker & Garwood and Garrison & Watson, all of Houston, for defendant in error.

SPEER, J.

Max Freeman sued the Galveston, Harrisburg & San Antonio Railway Company to recover damages for personal injuries received by him through a collision of the defendant's train with an automobile truck in which he was riding. There was a judgment for the plaintiff for $10,000, which judgment was subsequently affirmed by the Court of Civil Appeals, but which on rehearing was reversed and remanded, with Justice Graves dissenting. 273 S. W. 979. The special issues submitted, so far as material, together with the answers returned, were as follows:

"(2a) Did those in charge of the locomotive fail to commence ringing of the bell at a distance of at least 80 rods (440 yards) from the public road and to continue to ring the bell thereon until the collision occurred? You will answer `Yes' or `No.'" The jury answered, "Yes."

"(2b) If you have answered `Yes' to special issue No. 2a next preceding, then was the failure to thus ring the bell the proximate cause of the injury to plaintiff? You will answer `Yes' or `No.'" The jury answered, "Yes."

"(9) Did the plaintiff, in approaching the railroad crossing on the occasion in question, fail to use the care that a man of ordinary prudence under the same or similar circumstances would have used to discover the approach of the train and avoid collision therewith? You will answer `He did' or `He did not' as you find the facts to be." The jury answered, "He did not."

The jury found the damages to be $10,000. The defendant requested a number of special issues presenting different phases of contributory negligence, among which was its No. 12, as follows:

"Could the plaintiff, Max Freeman, when within a sufficient distance from the track that he could have stopped his automobile before reaching the track, by the exercise of ordinary care, have seen or heard the approaching train by looking or listening for the same?"

There was also requested the following:

"No. 13. If you have answered special issues Nos. 1, 2, 3, 8, 9, 10, and 11, in the affirmative, or either of them, then you will answer the following question: Was such failure on the part of plaintiff a contributing cause to plaintiff's injury?"

These issues were refused, for which, on rehearing, the Court of Civil Appeals reversed and remanded the case. We think the Court of Civil Appeals erred in this respect.

It will be observed in the court's issue No. 9 the question of plaintiff's contributory negligence in approaching the railroad crossing was submitted in a general way. It is not contended that this issue was affirmatively erroneous, but it is contended, and such objection was timely made, that the submission was too general. In such a case it is the right of the defendant to have submitted a more specific statement of the defense; in other words, a proper grouping of any facts within the pleading and the evidence that would, if found, constitute a defense. But before the defendant would be entitled to such submission, it would have to request such issue in proper form. Where the court has actually submitted the defense, though in general terms, it is not error to refuse a requested issue which is incorrect. The defendant must, at his peril, present a properly drawn issue for submission. If the requested issue is defective, it should be refused, and no error could, of course, be predicated upon such refusal. Gulf, etc., Ry. Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538; Stiles v. Hawkins (Tex. Com. App.) 207 S. W. 89; Wichita Falls, etc., Ry. Co. v. Combs (Tex. Com. App.) 268 S. W. 447.

Now the defendant's special issue No. 12 could not have been given for several reasons. In the first place, whether or not the failure of the plaintiff to discover the approaching train and/or to stop his automobile before reaching the track was negligence was not requested to be submitted. The issue as framed clearly assumed that fact. It has never been held in Texas that a mere failure to look or listen is necessarily contributory negligence upon the part of one approaching a railroad crossing. On the contrary, the very reverse has often been held. There is no statute declaring, and no decision holding, as matter of law, that a failure to stop, look, or listen will constitute contributory negligence. In the very nature of things whether a reasonably prudent person would stop, look, or listen would depend largely, if not entirely, upon the circumstances surrounding him. The court cannot assume, nor can ...