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

• Decision Date: 21 November 1893
• Citation: 23 S.W. 1019
• Parties: GALVESTON, H. & S. A. RY. CO. v. DAVIS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

23 S.W. 1019

GALVESTON, H. & S. A. RY. CO. v. DAVIS.¹

Court of Civil Appeals of Texas.

November 21, 1893.

On rehearing. For report of decision on appeal, see 23 S. W. Rep. 301.

JAMES, C. J.

In appellee's motion for rehearing it is claimed that the appellant on the trial did not offer any evidence showing diligence on its part in the furnishing of a suitable car; in fact there was no such issue raised by the evidence. The evidence in this respect seems to be in the condition stated by appellee. Following upon this, appellee contends that the instruction upon which the case was reversed was not incorrect, and should not have occasioned a reversal, because the unsuitableness of the car itself would render the appellant liable in the absence of any evidence that diligence and care had been exercised in regard to it, and consequently the charge was not erroneous. This is assuming that the evidence shows the car was unsuitable or unsafe for the purpose for which it was used. The twelfth assignment of error complains of the charge generally as unwarranted by the evidence, and specially for other reasons. The evidence showed what a regular caboose car was, and it also shows that the car which on the occasion of this accident was used as a caboose car was not one of these, and lacked many of the parts of a regular caboose car; but there was no evidence that the car which was so in use was not suitable for the purpose, and that this was so could not be implied from the fact only that its construction was different. What evidence there was on the subject indicates that it was suitable for the purpose. The witness Nicely describes it thus: "It was called a `combination car,' and was ventilated, and could be used for stock or perishable freight or most anything." That it was reasonably suitable for the purpose for which it was then being used was the result of the evidence. There being no evidence relating to the use of diligence by the company, and there being no issue of fact thereon, there was no occasion for the giving of a charge which defined the appellant's duties in that respect; and, there being no evidence from which the jury could find that the car was unsuitable or unsafe, the question of its unsuitableness or unsafeness should not have been submitted to the jury; and, in our opinion, with these charges given, the jury would naturally conclude that the want of evidence concerning diligence would render the appellant liable; and, with the...