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

• Decision Date: 30 November 1904
• Citation: 84 S.W. 254
• Parties: GALVESTON, H. & S. A. RY. CO. v. MANNS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

84 S.W. 254

GALVESTON, H. & S. A. RY. CO. v. MANNS.^*

Court of Civil Appeals of Texas.

November 30, 1904.

Appeal from District Court, Bexar County; A. W. Seeligson, Judge.

Action by J. G. Manns against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood and Newton & Ward, for appellant. Perry J. Lewis and H. C. Carter, for appellee.

NEILL, J.

This suit was brought by appellee against appellant to recover damages for personal injuries alleged to have been sustained by the negligence of the company. The defendant, answered by general demurrer, a general denial, and pleas of assumed risk and contributory negligence. The trial of the case resulted in a verdict and judgment in favor of the plaintiff for $14,000.

Conclusions of Fact.

On the 12th day of April, 1902, the plaintiff was in the employ of the defendant, and, among the duties of his employment, one of his duties was to place oil cans in the oil box on an engine tender while the engine and tender were in the roundhouse at San Antonio. In undertaking to perform this duty, he stepped upon a part of the engine cab to elevate himself, so as to place the oil cans in the oil box. After placing the cans he stepped down from that position, and, in doing so, stepped into the scoop of a coal shovel, which was lying upon the apron in the gangway between the tank and cab of the engine, and was, by reason of stepping on the shovel, thrown with great violence against a seat box in the cab, and thereby received serious and permanent physical injuries. It was negligence on the part of the defendant to allow the shovel to lay where it was on the apron of the gangway, and such negligence was the direct and proximate cause of plaintiff's injuries. Plaintiff did not see or know, nor could he, by the exercise of such care as a man of ordinary prudence would have used under the same or like circumstances, have known, that the shovel was lying in the gangway when he stepped from his position from the engine cab down upon it. Nor was he guilty himself of any negligence proximately contributing to his injury. The risk of the danger he encountered from the negligence, before found, of defendant, was not such as was ordinarily incident to his employment, nor was such risk assumed by him. By reason of the defendant's negligence, plaintiff was damaged in the amount found by the jury.

Conclusions of Law.

1. That a juror has prejudice against any particular class of litigation is not made by statute a specific ground of challenge for cause; that he "has a bias or prejudice in favor of or against either of the parties" is the statutory disqualification most nearly approaching it. When the spirit of the law is infused into its letter, we are not prepared to say that the prejudice of a juror against a class of litigation to which the case he is called on to try belongs does not disqualify him from sitting as a juror in that particular case; for prejudice against a class of litigation under which the plaintiff's cause of action comes is tantamount to a prejudice against the law which gives him the right to recover in his suit, and its existence in the mind of a juror in the trial of the case might work a greater injury than actual prejudice against him personally by the juror would cause him. A prejudice of a juror that might deny to a party his legal rights comes dangerously near a prejudice against such party himself, and in effect may be more damaging to him, and therefore it may be that the eye of the law, with justice in view, would look upon it as a prejudice against the party himself. But however this may be, "the court trying a cause may allow a challenge for a cause on other grounds than those which are declared to render a juror disqualified in a particular case, and when this power, which must necessarily be discretionary in its character, is exercised, it ought not to be reversed in any case unless it be made clearly to appear that thereby the party complaining has been deprived of a trial by a fair and impartial jury." Couts v. Neer, 70 Tex. 473, 9 S. W. 40. Therefore, even should it be held that the jurors Lewis and Smith, who were challenged for cause by the plaintiff upon the ground that each had formed such a prejudice against suits of this nature as might influence him in his verdict, were qualified jurors in this particular case, it does not follow that the judgment should be reversed because the trial court sustained the challenges. Though it appears from the record that after defendant had exhausted its challenges for cause, and talesmen were taken to fill up the jury, it is not shown, nor even contended, that defendant desired to challenge, or would have challenged either of them for cause, or that either of the talesmen was an unfair juror, or that defendant was in any way prejudiced or injured by the court's sustaining plaintiff's challenges of Lewis and Smith.

2. The third assignment of error complains of the court's refusing to give special charge No. 2 requested by defendant's counsel. We will not take space to copy the entire requested charge. After stating at great length, in an argumentative form, when, under the law, a servant may or may not recover for an injury resulting from the dangerous manner in which the business of his master is carried on, it winds up, as though stating a conclusion from an argumentative premise, as follows: "If you believe from the evidence that the employés of defendant in its roundhouse were in the habit of leaving the coal shovel or scoop, sometimes with the scoop of the shovel under the coal board, sometimes under the coal in front of the coal board, sometimes on top of the coal, and sometimes lying in the gangway between the engine and engine tender or tank, and that the plaintiff knew of the custom, or that, with ordinary circumspection which a prudent man would use in the performance of his particular duty, he would have known of that custom, and that at the time the plaintiff was injured in attempting to board defendant's engine in its roundhouse, as claimed by him, the said shovel was so left by some of defendant's employés in the gangway of said engine; and if you further believe that under such circumstances, in getting upon one of defendant's engines in its roundhouse at San Antonio, as claimed by plaintiff, for the purpose of putting oil cans in the oil box upon said engine tank or tender, he stepped upon said shovel and was injured thereby—then in such case plaintiff assumed the danger to himself in...