Gulf, C. & S. F. Ry. Co. v. Greenlee

• Decision Date: 20 April 1888
• Citation: 8 S.W. 129
• Parties: GULF, C. & S. F. RY. CO. v. GREENLEE <I>et ux.</I>
• Court: Texas Supreme Court

Page 129

8 S.W. 129

GULF, C. & S. F. RY. CO. v. GREENLEE et ux.

Supreme Court of Texas.

April 20, 1888.

Appeal from district court, Bosque county.

W. M. Flournoy, for appellant. Alexander & Winter and S. H. Lumpkin, for appellees.

GAINES, J.

This is an action brought in the court below by James S. Greenlee and his wife, Lou M. Greenlee, to recover damages for a personal injury to the wife, alleged to have occurred by reason of the negligence of the defendant company. The appellees were traveling along a public road in an ox wagon, and arriving at the road of defendant where it is crossed by a highway, and the heads of the oxen reaching the track of the railroad just as an engine drawing a train of cars swept past, the oxen were frightened by the locomotive, and, sheering to the right, overturned the wagon, and inflicted the injury of which appellees complained.

The first question presented in the brief of appellant is as to the action of the court in impaneling the jury. It appears from the bill of exceptions that, when the parties announced ready for trial, a number of the jurors selected for the week had been impaneled in another case, and were then considering their verdict, and that thereupon the court directed the names of the remaining jurors to be drawn and placed upon the slips. Twelve names having been drawn and entered upon the slips, the parties were required to exercise their peremptory challenges. The counsel for defendant objected to exercising its right of challenge until the entire panel for the week had been placed in the box, and their names drawn by the clerk. The objection was overruled. The counsel then moved the court to allow them to suspend their challenges until a sufficient number of talesmen could be summoned to complete the list. This was refused, and the parties were required to strike from the lists furnished by the clerk before other jurors were summoned. In the action of the court there was no error. The statutes evidently contemplated that, when as many as 12 jurors are present for the trial of causes, their names must be drawn, and placed upon the slips, before others are summoned. Rev. St. art. 3091. The article cited provides, in substance, that, in cases in the district court in which not so many as 12 names remain in the box, the court shall direct the sheriff to summon a sufficient number of qualified persons as it may deem necessary to complete the panel; thereby clearly implying that, if 12 remain, talesmen shall not be summoned until the number is reduced by challenge. When as many as 12 are drawn, they are then subject to be challenged for cause. Id. art. 3092. If, by such challenges, the number be reduced to less than 12, then other jurors must be summoned. Id. art. 3093. But if, after the exercise of the challenges for cause, as many as 12 remain, then "the parties shall proceed to make their peremptory challenges, if they desire to make any." Id. art. 3094. Such is the meaning of the statute, literally interpreted; and its obvious intent is to prevent an unnecessary consumption of time. As long as it is possible to complete the jury without resort to talesmen, this shall be done. Whenever the number is less than 12, either when first drawn, or after the challenges for cause or the peremptory challenges, then, and not before, the court is empowered to order others to be summoned by the sheriff. No reason is seen why the directions of the statute should not be literally pursued. Under them there is a reasonable assurance that every juror obnoxious to either party may be excluded from the panel, and thereby a fair and impartial jury secured. The articles we have cited from the Revised Statutes were partly, if not primarily, intended to meet the very contingency which presented itself in this case, and is wisely provided in order to save delay in the trial of causes, when such delay is not necessary to the due administration of justice. It is to be further remarked that the leading object of our present jury law was to avoid the evils resulting from the summoning of juries by sheriffs, and, in furtherance of that end, it is framed with the intent to secure the panel, when practicable, from the jurors selected by the commissioners.

There are several assignments of error which complain of the charge of the court. The court submitted an instruction to the jury upon the hypothetical case of a collision between the engine of defendant and plaintiffs' wagon; and it is objected to the instruction that there was no evidence of a collision, and that it is therefore erroneous. It seems to us, however, that this is quite an immaterial matter, and that, if the assumption that there was no evidence of actual contact were well founded, the charge could not have misled the jury to the prejudice of appellant. But, in point of fact, there was evidence of a collision between the engine and the oxen which drew the wagon. The plaintiff J. S. Greenlee testified that he thought the engine struck the horns of the oxen, and, in another place, that his impression was it touched their legs. His wife's testimony was somewhat to the same effect. Neither of them was positive whether there was any actual contact or not. It is also complained that the court erred in charging the jury that, if neither party was guilty of negligence, the injury was the result of an accident, and no recovery could be had. But it is clear that the defendant could not have been prejudiced by this instruction. In reference to the other assignments which relate to the instructions of the court, we may say generally that, in our opinion, the court's charge correctly presented the law applicable to the case, and to the issues made by the pleadings and evidence. Upon each phase of the case the jury were cleary instructed that the plaintiffs could not recover if they failed to exercise ordinary care and prudence in attempting to cross the railroad track. It is claimed, however, that the charge was erroneous, because the jury were not told that the plaintiffs could not recover if they were negligent in not watching for the train before they discovered the crossing. But we know of no law which makes it the duty of travelers upon a highway which runs parallel to a railroad track, before crossing it, to look for trains before they approach the point of danger. The court charged, in effect, that if the plaintiffs, after they "ascertained where the crossing was, or after, by the use of ordinary diligence, could have discovered the crossing, failed to exercise such care to avoid the danger as a prudent man would have exercised under like circumstances," they could not recover. The husband admitted in his testimony that he saw the crossing before he started his wagon down the declivity, and at a point some 50 or 60 feet from the railroad track; and testified that, before attempting to cross over, he looked for approaching trains, but saw none. Before this there was no danger to be encountered, and we are at loss to conceive what diligence he was called upon to exercise prior to this time. Can it be seriously contended that he should have been on the outlook merely because he was moving parallel to the railroad track? If the court had so charged, the charge would have been misleading, and fatal to the judgment if the verdict had been against the plaintiffs.

It is also insisted that the court, instead of charging generally that plaintiffs could not recover if they failed to exercise ordinary care in approaching the crossing, or at least in addition to such charge, should have instructed the jury that it was the duty of plaintiffs, as they approached the track, to look and listen for coming trains. But we think the charge as to contributory negligence of plaintiffs as given, in general terms, sufficient. According to the rule of decision in this court, except in case of a failure to perform a statutory duty, negligence is very rarely a question of law. It is most...