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

• Decision Date: 12 June 1919
• Docket Number: (No. 473.)
• Citation: 214 S.W. 539
• Parties: GALVESTON, H. & S. A. RY. CO. v. COOK.
• Court: Texas Court of Appeals

214 S.W. 539

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

(No. 473.)

Court of Civil Appeals of Texas. Beaumont.

June 12, 1919.

On Motion for Rehearing, July 2, 1919.

Appeal from District Court, Harris County; A. R. Hamblen, Special Judge.

Action by E. A. Cook against Galveston, Harrisburg & San Antonio Railway Company. Judgment for the plaintiff, and defendant appeals. Affirmed, and motion for rehearing overruled.

Baker, Botts, Parker & Garwood and McMeans, Garrison & Pollard, all of Houston, for appellant.

Presley K. Ewing, of Houston, for appellee.

BROOKE, J.

This appeal is from a judgment of January 26, 1918, against the appellant, in favor of appellee, E. A. Cook, for personal injuries sustained November 29, 1915, on Barron street in the city of Houston, from being struck by appellant's passenger train running eastward on and along such street, whereby he was violently hurled and thrown about 60 feet, and severely and permanently injured.

The gravamen of the complaint was that while plaintiff was standing in the street, a few feet from defendant's track, engaged in a business conversation with a man (Tobe Whitehead) who was seated in a four-wheel wagon, drawn by a horse, the horse became nervous and excited at the approach of the train, reared, and plunged, and cut up generally, twisting the wagon in a sort of L or elbow shape, encompassing plaintiff between, so that he, in order to escape immediate and threatened danger from the horse and wagon, was, under the impulse of fright and self-protection, forced to retreat backwards onto defendant's track, and was struck by the train, and suffered injuries which were proximately caused to him (1) by negligence of defendant's employés in charge of the train in running the same, in violation of the city ordinance, at a rate of speed greatly in excess of the limit of six miles per hour, but for which, after they discovered, or ought to have discovered, the cutting up of the horse and perilous position of the plaintiff, the injury would have been avoided, both by the plaintiff clearing the track before being struck and by the stopping of the train before striking him, and (2) by negligence of the defendant's employés in charge of the train in failing to give warning of its approach, either by whistle, as required by statute, or by continuous ringing of the bell, as required both by statute and ordinance, and (3) by negligence of the defendant's employés in charge of the train in failing to use ordinary care to maintain a reasonable lookout for danger to the public.

The answer pleaded a general denial, and specially set up contributory negligence.

It was no part of plaintiff's case that he was of unsound mind, only that his mental, as well as physical, faculties and capacity had been impaired so as to decrease his ability to labor and earn money, and entailing upon him great suffering.

The testimony was to the same effect, Dr. F. H. Neuhaus, undisputed by anybody, saying:

"He would not be in a condition that I would call an insane person, or anything of that sort; it is the mental incapacity of the kind I have indicated that I refer to."

Nevertheless, after the physicians and Mrs. Cook had testified, the defendant's attorney, all out of hearing of the jury, claimed that the plaintiff was without capacity to maintain the suit, that the defendant would not be protected by the judgment, and that he would file a plea in abatement, which was never done, and, thereupon, without any claim of surprise by the defendant, the court permitted the wife of the plaintiff, Mrs. E. A. Cook, in order to meet the objection, to alternatively intervene for plaintiff as a person of unsound mind, and the trial proceeded without the jury being advised of the intervention or even knowing what had been done, or that anything had been done in that regard.

The special verdict was as follows:

"(1) Was the plaintiff injured on the occasion in question substantially in the manner alleged?" Answer: "Yes."

"(2) If he was so injured, was the train in question running at the time within the corporate limits of the city of Houston at a greater rate of speed than six miles an hour?" Answer: "Yes."

"(3) If the train was then running at a greater rate of speed than six miles an hour, was such excess of speed beyond six miles an hour a proximate cause, as before defined, of alleged injury to the plaintiff, E. A. Cook?" Answer: "Yes."

"(4) Was the plaintiff E. A. Cook guilty of contributory negligence?" Answer: "No."

"(5) What sum of money, if paid now, will fairly and adequately compensate plaintiff for injuries which he is alleged and proved to have suffered on the occasion in question, if any; taking into consideration exclusively as elements of damage, if proved to be a natural and proximate result of such injuries, (1) mental anguish and physical suffering therefrom, if any, including such as he will in reasonable probability suffer in the future therefrom, if any, and (2) the reasonable value of his lost time therefrom down to the trial, if any, and (3) the reasonable value, if paid now, of his diminished capacity or ability therefrom to labor and earn money in the future, beyond the trial, if any?" Answer: "$15,000."

In connection with the issue of contributory negligence, the court inserted in its charge, at defendant's request, the following:

"In this connection, you are instructed that if you find and believe from the evidence that the plaintiff, E. A. Cook, approached the wagon of Tobe Whitehead, knowing that the street was narrow, and he stopped in close proximity to the track of the defendant company, and that he knew, or had reasonable grounds to know, that a train was likely to approach, and you further find and believe from the evidence that the plaintiff, E. A. Cook, was warned of the approach of the train in time to have avoided the accident, and you further find and believe from the evidence that he, without taking precaution, stepped or backed too close or near the train so as to be struck by the engine, and you further believe that a man of ordinary prudence, in the exercise of ordinary care, would not have done so, then you are instructed that the plaintiff was guilty of contributory negligence, and you will answer the above question, `Yes.'"

The court defined contributory negligence as follows:

"`Contributory negligence' is an act or omission on the part of a plaintiff which an ordinarily prudent person would not have done or suffered under the same or similar circumstances, and which, concurring with negligence of the defendant, becomes a proximate cause of alleged injuries."

The first assignment of error complains of the refusal to give a peremptory instruction for the defendant, asked by special charge, specifying the sole ground of the request to be "that plaintiff has failed to show that the defendant company was negligent in any particular which directly or proximately contributed to the plaintiff's injury," nothing whatever being said about contributory negligence as a ground for such request.

The only germane proposition under said assignment is the first proposition, that the peremptory instruction should have been given "under the facts of this case, the speed of the train, though in excess of that permitted by an ordinance of the city of Houston, was not the proximate cause of the plaintiff's injuries."

Appellant's first proposition is as follows:

"The court erred in failing and refusing to give to the jury special charge No. 1, requested by the defendant, which special charge is as follows:

"`In this case you are instructed that plaintiff has failed to show that the defendant company was negligent in any particular which directly or proximately contributed to the plaintiff's injury; you are instructed to return a verdict for the defendant company.'"

Under this assignment are five propositions, viz.:

(a) "Under the facts of this case, the speed of the train, though in excess of that permitted by an ordinance of the city of Houston, was not the proximate cause of the plaintiff's injuries; therefore the peremptory instruction should have been given."

(b) "The peremptory instruction should have been given because, under the facts proven, plaintiff himself was guilty of such negligence and contributory negligence as precluded a recovery."

(c) "The peremptory charge should have been given for the further reason that it was established by the overwhelming weight and preponderance of the testimony to such a degree as to render any other conclusion wrong that the running of the engine and train at the prohibited speed was not the proximate cause of plaintiff's injuries."

(d) "The peremptory charge should have been given, for the further reason that it was established by the overwhelming weight and preponderance of the testimony, to such a degree as to render any other conclusion wrong, that plaintiff's injuries resulted from his own negligence and contributory negligence."

(e) "The peremptory charge should have been given, for the further reason that it was established by the overwhelming weight and preponderance of the evidence, to such a degree as to render any other conclusion wrong, that plaintiff's injury was not due to the negligence of the defendant as a proximate cause, and, if not caused by the negligence or contributory negligence of the plaintiff, then his injury was due to an inevitable accident, for which neither party is responsible."

On the contrary it is urged:

(a) "Not only was there some evidence raising the issue, and thus necessitating its submission to the jury, but there was abundant evidence warranting the jury in finding proximate cause, particularly as the evidence made it fairly inferable, (a) that if the speed of the train had not been over six miles an hour, the plaintiff would probably have cleared the track before the train struck him, and (b) that the employés in charge of the train would have had ample...