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

Decision Date12 March 1924
Docket Number(No. 3739.)
PartiesGULF, C. & S. F. RY. CO. v. CONLEY et ux.
CourtTexas Supreme Court

Action by Charles L. Conley and another against the Gulf, Colorado & Santa Fé Railway Company. A judgment for plaintiffs was affirmed by the Court of Civil Appeals (236 S. W. 521), and defendant brings error. Reversed and remanded.

See, also, 252 S. W. 737.

W. N. Foster and F. J. & C. T. Duff, all of Beaumont, and Terry, Cavin & Mills, of Galveston, for plaintiff in error.

McCall & Crawford, of Conroe, for defendants in error.

CURETON, C. J.

This case is here by writ of error from the Court of Civil Appeals for the Ninth District. A full statement of the case may be found in the opinions of the Court of Civil Appeals, 236 S. W. 521, and the Commission of Appeals, 252 S. W. 737.

Mrs. Conley, one of the defendants in error, a passenger on plaintiff in error's train, not having alighted at her station, was carried a short distance beyond, and injured.

The case was tried on a general charge in which the jury was instructed, in part, as follows:

"A carrier of passengers is required to exercise the greatest degree of care which can be exercised under all the circumstances short of a warranty of its passengers."

The plaintiff in error, before the charge was read to the jury, objected thereto "because the same does not state a correct rule of law and is more burdensome upon and imposes a greater duty upon a carrier of passengers than is required by law, and the defendant therefore says that the jury may be misled thereby to defendant's injury." These objections were in substance repeated to those paragraphs of the charge wherein the definition quoted above was applied to the facts of the case.

The Court of Civil Appeals concluded that the charge complained of was not affirmatively erroneous, "and therefore not reversible error in the absence of a requested instruction by appellant more fully explaining the degree of care required by appellant as a carrier of passengers." This was once the rule with reference to charges not affirmatively erroneous. Due, however, to statutory enactments, it is no longer so.

Vernon's Sayles' Ann. Civ. St. 1914, art. 1971, in so far as material here, reads as follows:

"The charge shall be in writing and signed by the judge; after the evidence has been concluded the charge shall be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and present objections thereto, which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived."

The article further makes it the duty of the trial court to decide on and instruct the jury as to the law arising on the facts, and to submit all controverted questions of fact to the decision of the jury. Article 1985, relating to the submission of cases on special issues, requires the court to submit all the issues made by the pleadings, and provides that the failure to submit any issue shall not be deemed a ground for a reversal of the judgment unless its submission was requested in writing by the complaining party. These two statutes were enacted to accomplish the same purpose, and we think a failure to submit any particular issue under either statute can be reviewed on appeal only where the record shows a special charge was tendered on that issue.

But in the instance of a defective or erroneous charge on a subject or issue which the court has undertaken to charge upon, the objections required by article 1971 take the place of special charges and render it unnecessary that the latter be tendered. It is immaterial whether the matter objected to in the court's charge is a mere defective or incomplete statement of the law or issue to be determined, or is affirmatively erroneous; objections which sufficiently specify the error will preserve the point on appeal, without the necessity of again directing the court's attention to the same subject by special charge.

Had the Legislature intended that the complaining party should not only make objections, but tender a special charge as well, it undoubtedly would have said so. Having undertaken to state what must be done in this respect, the statute, under a well-known rule of construction, must be held to have excluded the necessity of doing anything else. Other cogent reasons are given in the cases cited. Houston & Texas Central Ry. Co. v. Cant (Tex. Civ. App.) 175 S. W. 745; Hines v. Kelley (Tex. Com. App.) 252 S. W. 1033.

We are of the opinion that the charge complained of was erroneous, in that it did impose a greater duty upon plaintiff in error as a carrier of passengers than is required by law, and that it was calculated to mislead the jury.

The true rule, as laid down by this court, is that given in the case of International & Great Northern Railway Co. v. Halloren, 53 Tex. 46, 37 Am. Rep. 744, as follows:

"Railroad companies, however, are not insurers of the safety of their passengers further than could be required by the exercise of such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under similar circumstances." International & Great Northern Ry. Co. v. Halloren, 53 Tex. 46, 37 Am. Rep. 744; International & Great Northern Ry. Co. v. Welch, 86 Tex. 203, 24 S. W. 390, 40 Am. St. Rep. 829; St. Louis S. W. Ry. Co. v. Gresham, 106 Tex. 452, 167 S. W. 724; Paris & G. N. R. Co. v. Atkins, 111 Tex. 306, 234 S. W. 66; Trinity & Brazos Valley Ry. Co. v. McDonald (Tex. Com. App.) 208 S. W. 912; St. Louis S. W. Ry. Co. v. Woodall (Tex. Com. App.) 207 S. W. 84; Wisdom v. Chicago, Rock Island & Gulf Ry. Co. (Tex. Com. App.) 231 S. W. 344; Steed v. G., C. & S. F. Ry. Co. (Tex. Com. App.) 231 S. W. 714; H. & T. C. R. R. Co. v. Dotson, 15 Tex. Civ. App. 73, 38 S. W. 642; G., C. & S. F. Ry. Co. v. Brown, 16 Tex. Civ. App. 93, 40 S. W. 608; St. Louis S. W. Ry. Co. v. Parks, 40 Tex. Civ. App. 480, 90 S. W. 343; G., H. & N. Ry. Co. v. Morrison, 46 Tex. Civ. App. 186, 102 S. W. 143; Pecos & Northern Texas Ry. Co. v. Coffman, 56 Tex. Civ. App. 422, 120 S. W. 1055; M., K. & T. Ry. Co. v. Dunbar, 57 Tex. Civ. App. 411, 122 S. W. 574; St. Louis, S. W. Ry. Co. v. McCullough, 18 Tex. Civ. App. 534, 45 S. W. 324; Dillingham v. Wood, 8 Tex. Civ. App. 71, 27 S. W. 1074; El Paso Electric Ry. Co. v. Harry, 37 Tex. Civ. App. 90, 83 S. W. 735; Dallas Consolidated Traction Ry. Co. v. Randolph, 8 Tex. Civ. App. 213, 27 S. W. 925; M., K. & T. Ry. Co. v. Dunbar, 49 Tex. Civ. App. 12, 108 S. W. 500; Hines v. Parry (Tex. Civ. App.) 227 S. W. 339; San Antonio, Uvalde & Gulf Ry. Co. v. Vivian (Tex. Civ. App.) 180 S. E. 952; Gary v. G., C. & S. F. Ry. Co., 17 Tex. Civ. App. 129, 42 S. W. 576; Green v. Houston Electric Co., 40 Tex. Civ. App. 260, 89 S. W. 442; Davis v. G., H. & S. A. Ry. Co., 42 Tex. Civ. App. 55, 93 S. W. 222; Gilmore v. Houston Electric Co., 46 Tex. Civ. App. 315, 102 S. W. 168; Schaff v. Gordon (Tex. Civ. App.) 214 S. W. 638; Fort Worth & D. C. Ry. Co. v. Brown (Tex. Civ. App.) 205 S. W. 378.

See, also, many authorities listed in Michie's Digest, vol. 3, p. 835; vol. 19, p. 96.

In no case called to our attention has it been held by any appellate court that the degree of care defined in the Holloren Case is incorrect, and we are convinced that the definition there given is the accepted one in this state.

That the charge in the instant case does impose a greater duty on the carrier, in a manner likely to mislead, is, we think, apparent. It instructs the jury that a carrier of passengers is required "to exercise the greatest degree of care which can be exercised under all the circumstances short of a warranty of its passengers." This language has a very different and much more burdensome meaning to that which tells the jury that the degree of care is that "required by the exercise of such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under similar circumstances."

The expression "short of a warranty" for the purposes of a jury trial really amounts to no limitation. The word "warranty" has no very well-understood meaning. In dealing with the subjects of real estate, insurance, and contracts generally, it has highly technical meanings, the interpretation of which could only be made by accomplished lawyers. See Webster's New International Dictionary (1911) p. 2305. It is quite true there are various definitions of the word, some of which relate to security, or safety, etc.; but a full examination of these as given in the dictionaries will convince one that it has no commonly understood meaning, or one which would give a jury any definite limitation when used in a charge of the character here under examination. The word, as used by text-writers and in opinions of courts, with reference to obligations of carriers of passengers, has been used, we believe, for the purpose of differentiating between the rule of liability as applied to carriers of freight and of passengers. Certainly this is the manner in which Mr. Hutchinson has used the word. Hutchinson on Carriers of Passengers (3d Ed.) vol. 2, §§ 890 to 895, 900.

But when we come to determine what is warranted in a shipment of freight, we are confronted with a field of legal speculation which would require much learning and many pages of manuscript to explain and apply. It involves all exceptions thereto — as acts of God, the public enemy, defects of package, inherent vice of the article shipped, etc.

To say that a jury, unadvised as to the meaning of a term of such intricate and variant usage, would likely give it a correct...

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