La Grone v. Chicago, R. I. & G. Ry. Co.

• Decision Date: 10 June 1916
• Docket Number: (No. 8397.)
• Parties: LA GRONE v. CHICAGO, R. I. & G. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

189 S.W. 99

LA GRONE v. CHICAGO, R. I. & G. RY. CO.^*

(No. 8397.)

Court of Civil Appeals of Texas. Ft. Worth.

June 10, 1916.

Rehearing Denied October 14, 1916.

Appeal from District Court, Tarrant County; J. W. Swayne, Judge.

Action by W. T. La Grone against the Chicago, Rock Island & Gulf Railway Company. From a judgment for defendant, plaintiff appeals. Judgment affirmed.

McCart, Bowlin, Terrell & McCart, of Ft. Worth, for appellant. Lassiter, Harrison & Rowland, of Ft. Worth, for appellee.

BUCK, J.

Appellant, W. T. La Grone, filed suit December 5, 1912, against appellee for damages for personal injuries alleged to have been received by him by being struck by an engine operated on appellee's line of railway in its yards in the eastern part of the city of Ft. Worth on July 3, 1912. From a judgment in favor of the defendant, the plaintiff appeals.

On a former appeal, the Texarkana Court of Appeals reversed a judgment in favor of plaintiff and remanded the cause, holding that the uncontradicted evidence showed as a matter of law that plaintiff was guilty of contributory negligence. This opinion will be found in 167 S. W. at page 7, and as it presents a fair statement, both of the pleadings and the evidence, adduced in this trial, we will adopt such statement, without repeating in this opinion.

The cause was submitted to the jury upon special issues, which only presented the question of discovered peril; the court holding that the evidence showed as a matter of law that the plaintiff was guilty of contributory negligence, and therefore was not entitled to recover, unless upon the theory of discovered peril. The issues presented and the answers thereto were as follows:

Question A: "If you have found from the evidence that plaintiff was struck and injured by the train mentioned in the evidence, was or was not the plaintiff, immediately before being struck by said engine, in a position of peril from said engine? Ans. Yes."

Question B: "Did or did not the engineer operating said engine and train discover the perilous position, if any, of the plaintiff in time for him to have stopped said train or to have slackened its speed, or to have given plaintiff warning of the approach of said train in time to have avoided injury to plaintiff from said train? Ans. Yes."

Question C: "Did or did it not reasonably appear to said engineer that he could pass plaintiff with said train in safety to plaintiff, or that plaintiff would probably leave said track in time to avoid being injured by said train? Ans. Yes."

Question D: "Did or did not said engineer sound the whistle of said train or ring the bell of said engine in time for plaintiff to have gotten out of the way of said approaching train, if he was in the way of same? Ans. Yes."

Question E: "Did or did it not reasonably appear to said engineer that plaintiff heard and would heed such warnings, if any, before being struck by such engine, if you find that he was struck by same? Ans. Yes."

Question F: "Was or was not plaintiff, while in view of said engineer, as said train was approaching him and before the engineer lost sight of plaintiff, walking in such position with reference to said track the engine and train could have passed him in safety? Ans. Yes."

Question G: "Did or did not such engine strike and injure plaintiff? Ans. Yes."

Question H: "If you have answered the next preceding question in the affirmative — that is question G — how much, if any, was plaintiff damaged by such injury, if any, estimating such damages according to the law, as given you in paragraph 4 of the above charge? Ans. $500.00."

The court further gave the jury an accepted definition of "negligence" and "ordinary care," and further charged the jury:

"(2) If an engineer operating a train discovers a person in front of such train, and on or near the track upon which the train is being operated, in a position of peril with reference to such train, and such engineer discovers such perilous position of such person, and it does not reasonably appear to such engineer that he can safely pass such person with his train, or that such person was aware or would become aware of the approach of such train, and would probably leave such position of peril before being injured by such train, it then becomes the duty of such engineer to use the means in his power consistent with the safety of the train and the persons thereof to stop the train, if necessary, or to slacken the speed of such train, or to give such warning as might be in his power to avoid injuring such person with said train, if he had time in which to stop said train, or to slacken the speed of same, or to give such warning before such person was injured. And it would make no difference that such person was himself a trespasser, or was himself guilty of negligence in placing himself in such perilous position with reference to such railway track and approaching train.

"(3) If such engineer did not discover the perilous position of the person on or near the track in time to stop said train before injuring such person by the use of the means in his power, or to slacken the speed of such train before such person was struck by such train, or to give such person warning of the approach of said train in time to avoid injuring such person, or in time for such person to escape from such danger, or if it reasonably appeared to such engineer that such person would probably leave such place of danger before being injured by said train, or if it reasonably appeared to said engineer that he could pass such person with his train in safety to such person, or if such engineer gave warning by sounding the whistle of such engine or ringing the bell thereof in time for such person to leave such place of danger, and it reasonably appeared to such engineer that such person heard such warning in time to leave such track or such place of danger, before being struck by such approaching train, or that such person was in such position with reference to said track and approaching train when seen by the engineer that such train, if such person had not changed his position with relation to such track, would or could have passed him with safety, then in either of the events herein mentioned it would not be negligence upon the part of the engineer to undertake to pass such person with his engine and train."

Appellant's first assignment urges error in the failure of the trial court to give plaintiff's special charge, which submitted to the jury —

"the issues as to whether or not defendant was guilty of negligence as alleged in plaintiff's petition in failing to give signals while the train was moving within the corporate limits of the city of Ft. Worth, and in running more than six miles per hour on the occasion of plaintiff's injuries, in violation of ordinances in evidence, and as to whether or not the plaintiff was guilty of contributory negligence in the premises."

The court found in its qualification of appellant's fourth bill of exceptions that the evidence showed that plaintiff was guilty of contributory negligence as a matter of law, and stated that he —

"would so hold, even if he were not bound by the decision to that effect by the Court of Civil Appeals on the former trial of this case."

The evidence is practically the same as apparently was adduced on the former trial and shown in the statement made by the Texarkana court. Without repeating said testimony, perhaps it is sufficient for us to state that we agree with the conclusion reached by the trial court, as well as that reached by the Court of Civil Appeals for the Texarkana District, that the evidence discloses contributory negligence on the part of the plaintiff as a matter of law. Therefore we hold that the trial court properly refused to submit the issue of plaintiff's contributory negligence. Moreover, plaintiff's proffered charge contained definitions already given in the main charge, and was in form a general charge, while it must be presumed, from the fact that the court submitted the case on special issues, that a request therefor had been made by one or both parties. Where a case is submitted on special issues, it is not proper to give a general charge. Cole v. Crawford, 69 Tex. 124, 5 S. W. 646; ...