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

• Decision Date: 06 June 1896
• Parties: GULF, C. & S. F. RY. CO. v. PENDERY.
• Court: Texas Court of Appeals

36 S.W. 793

GULF, C. & S. F. RY. CO. v. PENDERY.

Court of Civil Appeals of Texas.

June 6, 1896.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Action by E. C. Pendery against the Gulf, Colorado & Santa Fé Railway Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

J. W. Terry, for appellant. Wynne & McCart, for appellee.

Conclusions of Fact.

TARLTON, C. J.

Mrs. Etta F. Pendery, the wife of the appellee, E. C. Pendery, was on the 10th day of April, 1889, a passenger, with others, on a street car of the Ft. Worth Street-Railway Company. This car collided with a train of the appellant, the Gulf, Colorado & Santa Fé Railway Company, at a crossing on Belknap street, in the city of Ft. Worth. As a result of this collision, Mrs. Pendery was seriously and painfully injured. The injury sustained by her is to be ascribed to the negligence of the employés of the appellant, the Gulf, Colorado & Santa Fé Railway Company, operating its train on that occasion. The injuries inflicted upon Mrs. Pendery were of such a character as to justify the assessment of damages awarded by the verdict of the jury, in the sum of $7,875.

Conclusions of Law.

We dispose as follows of the questions presented in the appellant's brief:

1. Under the authority of Railway Co. v. Brown, 33 S. W. 146, decided by this court, and approved by the supreme court, the contention of the appellant first urged under its twenty-first, twenty-second, and twenty-third assignments of error, to the effect that the court erred in treating a violation of the city ordinance regulating the speed of trains as negligence per se, must be overruled. We do not think that the charges complained of in these assignments merit the criticism of the appellant, that the jury would find for the plaintiff on the mere existence of negligence, without reference to the question whether injury proximately resulted therefrom. Railway Co. v. Nelson (Tex. Civ. App.) 29 S. W. 78.

2. With sufficient accuracy, the court, in its general charge, defined negligence as follows: "Negligence, as used in this charge, means a failure to exercise such caution and care as a reasonably prudent and cautious person would usually exercise with reference to a similar matter under similar circumstances." The court then instructed the jury that, even though guilty of negligence, the defendant would not be liable unless the injury complained of was the direct and proximate result of the negligence. Proceeding, the charge reads as follows: "If you [the jury] believe from the evidence that the agents or servants of the defendant, the Gulf, Colorado & Santa Fé Railway Company, in charge of and in operating the train which it is alleged collided with the street car upon which plaintiff's wife was a passenger, in approaching the crossing of the said street railway over which said street car was being operated, failed to keep a proper lookout for cars or other vehicles which might be approaching the crossing, and that the said agents or servants were guilty of negligence in not keeping a better lookout, and in not exercising more caution and care, than they did at the time of said collision; * * * and if you further believe from the evidence that the collision with said street car was due to and resulted from such negligence on the part of such agents or servants of said defendant, the Gulf, Colorado & Santa Fé Railway Company, and that the collision would not have occurred but for such negligence on the part of said employés; and if you further believe from the evidence that the plaintiff's wife was injured by such collision,—then it will be your duty to find for the plaintiff, against the Gulf, Colorado & Santa Fé Railway Company. * * *" Reading together these several items or clauses of the charge, we interpret the instruction as meaning—and the jury must have so understood it—that the defendant would only be liable for the failure to keep a proper lookout in the event that its agents and employés failed to keep such a lookout as a reasonably prudent and cautious person would have exercised with reference to a similar matter under similar circumstances. This, we think, was a proper test of the requisite diligence. Railway Co. v. Shieder (Tex. Sup.) 30 S. W. 907. Without detailing them, we think that the facts and circumstances in evidence would justify an inference that the defendant's agents and employés failed to keep a proper lookout for cars and other vehicles that might be approaching the crossing, and that the pleadings of the plaintiff justified, with the evidence, the submission of such an issue. Thus, as stated on page 2 of the appellant's brief, the plaintiff alleged "that the agents and servants then and there in charge of defendant's (G., C. & S. F. Ry. Co.'s) train, negligently and carelessly failed to keep a proper lookout for said street car on said street."

3. In Railway Co. v. Higbee, 26 S. W. 737, a companion to the present case, decided by this court, and approved by the supreme court, special charge No. 12 requested by the defendant, upon a similar state of facts, was condemned by us. We adhere to the conclusion there announced, and overrule the eleventh assignment of error, complaining of the refusal of this instruction.

4. The plaintiff, E. C. Pendery, without objection on the part of the defendant, testified as follows: "My wife is in such a condition that she cannot receive the approaches of myself as her husband in the generative relation without pain, and always has been since the time of the accident to the present time." The effect of this testimony the defendant sought to avoid by submitting to the court special charges Nos. 2 and 4, the refusal of which is complained of in the third and fourth assignments of error. These charges...