Frick v. International & G. N. Ry. Co.

• Decision Date: 20 November 1918
• Docket Number: (No. 6082.)
• Citation: Frick v. International & G. N. Ry. Co., 207 S.W. 198 (Tex. App. 1918)
• Court: Texas Court of Appeals
• Parties: FRICK v. INTERNATIONAL & G. N. RY. CO. et al.

207 S.W. 198

FRICK v.INTERNATIONAL & G. N. RY. CO. et al.

(No. 6082.)

Court of Civil Appeals of Texas. San Antonio.

November 20, 1918.

Rehearing Denied December 18, 1918.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Suit by Emil H. Frick against the International & Great Northern Railway Company and its receivers.The cause was tried with a jury upon special issues.The jury answered the issues against plaintiff, in accordance with which judgment was rendered, and plaintiff appeals.Affirmed.

Perry J. Lewis, Champe G. Carter, Randolph L. Carter, and H. C. Carter, all of San Antonio, for appellant.

John M. King, of Houston, and F. C. Davis and Marshall Eskridge, both of San Antonio, for appellees.

SWEARINGEN, J.

This is a suit by Emil H. Frick, the appellant, against the International & Great Northern Railway Company and its receivers, James A. Baker, and Cecil A. Lyons, to recover damages for personal injuries.The cause was tried with a jury upon special issues.The jury answered the issues against appellant, in accordance with which judgment was rendered.

Appellant's petition alleged that he was an employé of the appellee railway company, and upon November 5, 1913, he accepted an invitation from another employé of the railway company, Jack Meyers, to accompany him in the use of the railway track of the company with a motorcycle belonging to the railway company, but under the care and custody of Jack Meyers.It was alleged that the company's mechanic, an official having control over the said car and the men thereon, was present, saw and consented to the trip; that when returning to San Antonio the said motorcycle was run down by one of the company's freight trains while upon a bridge about eight miles from San Antonio, and appellant was thrown from the bridge and seriously and permanently injured; that the said collision and injuries were caused by the negligence of the railway company's employés in operating said train at a negligent rate of speed and in failing to give a timely signal of any kind of the approach of the train; that the company's employés in charge of said train were also negligent in failing to stop or slacken the speed of the train, and in failing to give a timely warning signal after the appellant's position of peril was discovered.

The railway company replied with a general denial and a plea of contributory negligence on the part of appellant.The answer averred that the plaintiff was upon a pleasure trip of his own; was not then in the course of his employment with the company, and that appellant was not upon said motorcycle and track by consent from any one having authority over said car, and that the employés in charge of the train owed no duty of lookout at the place where the collision occurred, and did not discover the plaintiff upon the track in time to have prevented injury to him by using the means at hand.The answer further averred that appellant went out upon the line of the railway company without the knowledge or consent of any official or employé of said railway company having control over the line, and that no notice was or could have been given to the employés in charge of the train which came in contact with the motorcycle.The company answered, further, that the appellant knew at the time he started on his trip that the train which collided with him was out and was due at the point of the collision about the time of the accident, and also knew that a train of the company was likely to pass over the line at any time, and answered that appellant just prior to the accident stopped the motorcycle on the company's railroad track, and indulged in the pleasure of shooting wild game, left the motorcycle on the track, went to gather up the game, and then started the motorcycle with a loud noise and failed to look or listen for an approaching train.The railway company averred that this was extrahazardous, because immediately south of the bridge there was a steep grade and a decided curve, all of which was known to appellant.

The only issues submitted were the following:

"(1) Did the defendant's engineer or fireman in charge of the locomotive discover the plaintiff's position of peril in time, by the exercise of ordinary care, to have sounded a warning of the approaching train that would have prevented the injury to plaintiff?

"(2) Did the engineer and fireman, after such discovery, if any, fail to give such timely warning as would have prevented the injury to plaintiff?

"(3) Did the engineer or fireman operating the locomotive discover the plaintiff's position of peril in time, with the means at hand, consistent with the safety of the train, to have so slackened the speed of the train as to have prevented the injury to plaintiff?"

The first six assignments assail the action of the trial court in giving, at the request of appellee, the following special instruction:

"You are instructed that the plaintiff at the time of the collision and injury complained of was a trespasser on the track of the defendant, and that the defendant owed him no duty until his position of peril was discovered."

It is urged that this special instruction is fallacious in two particulars, viz.: That it was error for the court to tell the jury that appellant was a trespasser on the railway company's track, and that it was also error to tell the jury that the railway company owed appellant no duty until his position of peril was discovered.

The fact is that appellant was rabbit shooting after work hours for his own pleasure and was not in the performance of any duty for the railway company.He was using the main line of track from Laredo to San Antonio at a time when he knew the track would be used by the company's train.He was not invited or licensed to so use the track for his personal pleasure by any one shown to have authority to give the permission to so use the track.Under the facts appellant was beyond question a trespasser.I. & G. N. Ry. v. Cock, 68 Tex. 713, 5 S. W. 635, 2 Am. St. Rep. 521;T. & P. Ry. v. Black, 87 Tex. 161, 27 S. W. 118.Counsel for appellant further insist that the question of whether or not appellant was a trespasser was, by the pleading and evidence, an issue to be determined by the jury.However, no such issue was requested by appellant."The failure to submit any issue shall not be deemed a ground for reversal of the judgment upon appeal, * * * unless its submission has been requested in writing by the party complaining of the judgment."Vernon's Sayles'Rev. Civ. St. art. 1985.

The further contention is made that "trespasser" means a lawbreaker, and the use of the term applied by the court tended to discredit appellant's testimony upon the issue of discovered peril submitted to the jury.Appellant could have had the court define the word "trespasser" to mean one who was upon the...