G., C. & Santa Fe R'Y Co. v. Evansich

• Decision Date: 29 January 1884
• Docket Number: Case No. 1652.
• Citation: 61 Tex. 3
• Court: Texas Supreme Court
• Parties: THE G., C. & SANTA FE R'Y CO. v. FRANK G. EVANSICH.

61 Tex. 3

THE G., C. & SANTA FE R'Y CO.

v.FRANK G. EVANSICH.

Case No. 1652.

Supreme Court of Texas.

Jan. 29, 1884.

Appeal from Washington. Tried below before the Hon. I. B. McFarland.

Suit by appellee to recover damages of the railway company for injuries to his son, seven years old, received while he was engaged in play, with other boys, upon a turn-table of defendants, at Brenham, Texas.

At the September term, 1881, a demurrer to the petition was sustained and the cause dismissed; but, on appeal, this judgment was reversed. See 57 Tex., 123.

The case was again tried at the March term, 1883, and resulted in a judgment for the plaintiff for the sum of $225.

The opinion states the case as to the points decided.

Hume & Shepherd, for appellant, cited: Evansich v. G., C. & S. F. R'y Co., 57 Tex., 126;T. & P. R'y Co. v. Murphy, 46 Tex., 357; H. & G. N. R. R. Co. v. Parker, 50 Tex., 345-46; R. R. Co. v. Stout, 17 Wall., 664.

T. D. Jodon and Breedlove & Ewing, for appellee.

STAYTON, ASSOCIATE JUSTICE.

There are many assignments of error in this cause, but only such as have been presented in the brief of counsel for appellant will be considered.

The court in its charge to the jury clearly instructed them that the appellee was not entitled to recover unless the injury of which he complained resulted from the negligence of the appellant, and that the negligence of the appellee or his son contributing to the injury would defeat a recovery.

Whether there was negligence by either party was fairly submitted in parts of the charge not complained of, but it is claimed that the following instruction took the question of negligence from the jury.

The instruction objected to is as follows: “The fact that it was not the custom upon other roads in Texas, and in other states, and upon defendant's road, to fasten, lock, guard or watch turn-tables, will not affect plaintiff's right to recover in this suit if it is shown by the evidence that he has received damages as alleged. It is the legal duty of defendant to keep its turn-table locked, fastened or guarded, to keep children without discretion from being injured thereon, without regard to the custom of railroads as to not fastening or guarding turn-tables.”

It is certainly true that the habitual practice of negligent acts by any number of railways, for any period of time, cannot make a negligent act, an act of due care and diligence. The charge in question does not inform the jury that a failure to perform a given act is negligence, but it does inform the jury, in effect, that the habitual practice of the appellant, and of other railways, not to lock, fasten, guard or watch turn-tables would not affect the right of the appellee to recover, “if it is shown by the evidence that he has received damages as alleged.”

The petition alleged that the injury was received through the negligent act of the appellant, and whether this was true or not was left to the jury to be determined by the evidence.

The last part of the charge, though it refers to given methods of securing the turn-table, could not have been understood by the jury otherwise than as instructing them that it was the duty of the railway company so to keep its turn-table that children not having sufficient discretion to know and avoid danger attending the use of it could not use it.

This is certainly the duty of a railway company, and it was not improper for the court so to inform the jury, the other conditions upon which the liability of the appellant depended having been given in the charge.

The record makes it reasonably manifest that the custom of other railways not to secure their turn-tables was urged as a sufficient reason for a neglect in this respect by the appellant, and as a measure of the care and diligence required of it; and the charge in question was evidently given to correct any erroneous impression in this respect which may have been made upon the mind of the jury during the trial.

The second instruction asked by the appellant was: “If you believe, from the evidence, that the turn-table of defendant was built in a proper manner, upon its own property, and that it is and has been customary upon railways generally to leave turn-tables unlocked and unguarded, and that such custom and practice is reasonable, and such as an ordinarily prudent person might be expected to exercise, then you will find for the defendant.”

This instruction was misleading and otherwise objectionable. The question was: Did the injury result from the negligence of the appellant? This was the inquiry to be made by the jury, under the evidence before them bearing upon that fact.

The charge asked was calculated to induce the jury to believe that the proper construction of the turn-table, upon the land of the appellant, was a distinct and important inquiry in the case. This was not true; for however well the turn-table may have been constructed upon the land of the appellant, yet it was liable if it kept the turn-table negligently and injury resulted therefrom without neglect by appellee or his son.

It was also calculated to induce the jury to believe, if other railways usually kept their turn tables unlocked and unguarded, and that with such railways such was a reasonable and prudent manner of keeping them, that it followed, as a matter of course, that the failure of the appellant to secure its turn-table would not be negligence.

There are two vices in the charge in this respect. Negligence is a fact to be determined in a case by the evidence, and that other railways may not usually have kept locked or guarded their turntables, and that such habitual practice may have been, as to them, reasonable, and the exercise of due care, would not tend to prove that such failure on the part of appellant was the exercise of due care.

The facts under which a turn-table was so left unsecured would have to be looked to in each case to determine whether due care was used or not. In one case due care may not require that a turntable, from its situation, or other reason, be fastened at all, while in another the failure to fasten it would be negligence.

While it is true that an established custom may be looked to, in many cases, for the purpose of determining what parties really intended...