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

• Decision Date: 08 November 1900
• Citation: 59 S.W. 626
• Parties: GALVESTON, H. & S. A. RY. CO. v. ENGLISH.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

59 S.W. 626

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

Court of Civil Appeals of Texas.

November 8, 1900.

Appeal from district court, Galveston county; E. D. Cavin, Judge.

Action by John English against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Mott & Armstrong, for appellant. Lovejoy, Sampson & Molevinsky, for appellee.

PLEASANTS, J.

In the court below, appellee recovered a judgment against appellant for the sum of $15,000, as damages for personal injuries sustained by him through the alleged negligence of the appellant. At the time appellee was injured he was in the employment of appellant as a switchman, and was engaged, as a member of a yard crew, in switching cars in appellant's yard at Houston, Tex. The accident occurred at night, and was caused by appellee stumbling and falling over a ground switch in said yard while attempting to uncouple a car from a train of cars which was being handled by said crew, and was in motion at the time appellee attempted to uncouple said car. Appellee fell by the side of the track, and his hand was caught under the wheels of the car, and was so bruised and mangled that it had to be amputated at the wrist. The petition alleges that the injury to appellee was caused by the negligence and carelessness of appellant, in that "(a) it negligently and carelessly maintained said ground switch in its yards as aforesaid without a light or lantern at or near said switch, and in a dangerous and unsafe condition, such as caused serious hazard and danger to its employés; (b) that the defendant company negligently and carelessly failed to maintain and provide sufficient lights in said yards at or near where said switch was located, and that the surroundings in said yards were such as to cause the immediate location of said switch to be in doubt, on account of the extreme dark condition at or near the point where said switch was located; (c) that the defendant was negligent and careless, in that its yards were insufficiently lighted."

The court below, in paragraph 8 of the charge, instructed the jury as follows: "You are instructed that it was the legal duty of the defendant company to use ordinary care to furnish for the use of plaintiff reasonably safe and suitable appliances with which to perform his work, and also that it was the legal duty of the defendant company to use ordinary care to furnish for the use of plaintiff a reasonably safe and suitably lighted yard in which to perform his work; that this was a personal duty that the defendant company owed to the plaintiff." We think that this instruction is clearly erroneous, in that it charges appellant with a duty not imposed by law. The full measure of appellant's duty to appellee, so far as the condition of its yards was concerned, was to use ordinary care to furnish him with a reasonably safe yard in which to perform his work; and, if this duty was discharged by appellant, it would not be liable for any damage that might occur from a failure to have the yard suitably lighted. This charge can only mean one of two things, viz.: Either that it was the legal duty of appellant to use ordinary care to have its yard suitably lighted, regardless of whether or not said yard would be reasonably safe without such light, or that in the opinion of the court said yard would not be reasonably safe unless same was suitably lighted; and the jury must necessarily have so interpreted said charge. Under either of these interpretations the charge is obviously upon the weight of the evidence, and cannot be sustained. Railway Co. v. Murphy, 46 Tex. 363; Railway Co. v. Gasscamp, 69 Tex. 546, 7 S. W. 227; Campbell v. Trimble, 75 Tex. 270, 12 S. W. 863.

It is insisted by appellee that, if said instruction be erroneous when considered alone, such error is cured by other paragraphs of the charge in which the issue of negligence vel non was directly and clearly left to the determination of the jury; that a charge must be construed as a whole; and that, when so construed, the charge in this case is an accurate and correct presentation of the law governing the case. The rule that the charge of the court should be construed as a whole can have no application to a charge that is contradictory in its statements of the law applicable to the case, and the fact that a charge is contradictory in its statements of the law would ordinarily, of itself, require the reversal of the case in which such charge was given. If the charge in this case is upon the weight of the evidence, in instructing the jury that it was the legal duty of the appellant to use ordinary care to have its yard suitably lighted, or instructing them, by implication, that in the...