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

• Decision Date: 11 March 1890
• Citation: 13 S.W. 327
• Parties: GALVESTON, H. & S. A. RY. CO. <I>v.</I> KUTAC <I>et al.</I>
• Court: Texas Supreme Court

13 S.W. 327

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

KUTAC et al.

Supreme Court of Texas.

March 11, 1890.

Commissioners' decision. Appeal from district court, Colorado county. For report on former appeal, see 11 S. W. Rep. 127.

W. N. Shaw and D. C. Bolinger, for appellant. Phelps & Lane and Foard, Thompson & Townsend, for appellees.

HOBBY, J.

This is the second appeal in this cause. There seems to be no material difference between the facts of the case reported in the first appeal (11 S. W. Rep. 127) and those contained in the record before us. The suit was brought by appellees for damages resulting from the killing of their mother, Mrs. Annie Kutac, on February 14, 1885, in a collision between defendant's train and a wagon in which she was riding. It was alleged that it was caused by the gross negligence of the agents and servants of the defendant in operating its train, running the same at a reckless and dangerous rate of speed, which it was alleged defendant authorized and directed to be done through different towns along and on its line of road, and through the town of Schulenberg, where the collision occurred, and in not giving any warning or signal of the approach of said engine at the crossing. With respect to the character of negligence which would render appellant liable in this suit, the court instructed the jury as follows: "If you find from the evidence that Annie Kutac was killed as charged by plaintiffs in their petition, you will then consider whether or not, from the evidence, such killing was done or caused by the want of the exercise and use of ordinary care on the part of defendant's agents and employes in propelling and running its engine and the train over its road. If you find," etc., "that Annie Kutac, while crossing the railroad track of defendant in a wagon at a public crossing, was run over or so injured by the engine and train of defendant that she died from injuries then received, and that such death was caused by the want of the exercise of proper care and prudence on the part of said employes and agents, which could, if exercised by them, have prevented the injury complained of, and that by the use of ordinary care and watchfulness on the part of the person or persons so running said engine could have been prevented by them, then, in such case, you will find for plaintiffs; subject, however, to the further instructions here given you in this charge." The jury were also instructed as to the statutory signals the defendant was required to make near or at a public crossing, and that if by reason of the failure to give these Mrs. Kutac was killed, plaintiffs would be entitled to recover. The jury were charged as follows: "But you are further instructed that, before the plaintiffs would be entitled under the law to recover any damages from defendant, you must find from the evidence before you that the said Annie Kutac could not, by the use of that ordinary care and prudence which everybody ordinarily exercises, or should exercise, to protect themselves from injury, have prevented the injury complained of by plaintiffs." "For to entitle plaintiffs to recover you must find from the evidence, not only that defendant failed to exercise ordinary care and prudence to prevent the injury, but also that the injury was not done the woman by any fault or want of proper care on her part, as every person is bound to take due care of himself, and when a person contributes to an injury to himself, by his own act, or want of proper care and attention to his safety, no damage will lie for such injury. If, therefore, you find that Annie Kutac, by a want of proper care and prudence, contributed to her injury, then you will and for the defendants."

The foregoing instructions are complained of, under the fourth assignment, because they "authorize a recovery against the defendant for the death of Mrs. Kutac, caused by the ordinary negligence of the employes, agents, and servants of defendant, and fails to limit the right of recovery to gross negligence on the part of the agents and servants of defendant." It will be proper in this connection to consider appellant's fifth assignment, which is that "the court erred in refusing the following charges asked by it:" "The defendant is not chargeable with any act of ordinary negligence, by or on the part of their employes or servants, causing the death of the deceased." "To make them liable, the act or omission alleged to have caused the death must have been willful or grossly negligent." "Negligence cannot be...