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

• Decision Date: 10 October 1894
• Citation: 27 S.W. 827
• Parties: GULF, C. & S. F. RY. CO. v. SCOTT.
• Court: Texas Court of Appeals

27 S.W. 827

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

Court of Civil Appeals of Texas.

October 10, 1894.

Appeal from district court, Lampasas county; W. A. Blackburn, Judge.

Action by A. J. Scott against the Gulf, Colorado & Santa Fe Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

J. W. Terry and Chas. K. Lee, for appellant. W. B. Abney and Walter Acker, for appellee.

FISHER, C. J.

Appellee instituted this suit in the district court of Lampasas county to recover $2,500 damages, alleged to have been received while walking on appellant's railway track in the town of Kempner, through the negligence of the employés of appellant operating a train on said railway. Defendant answered by general and special exceptions, general denial, and plea of contributory negligence. Trial by jury, November 24 and 25, 1892, and verdict and judgment for appellee for $1,250.

1. The appellant's fifteenth and twenty-fifth assignments of errors are as follows: "The court erred in refusing to give the eleventh special charge requested by the defendant, which is as follows: `The law requires a railway company, on approaching a public crossing with one of its trains, to ring a bell or blow a whistle for at least eighty rods from such crossing, and to keep the same ringing until the train is stopped, or the crossing passed, but it is not necessary to do both; but if it does one it has fulfilled its whole duty, and is not obliged to do both, and unless you believe from the evidence that neither a whistle was blown nor a bell rung as above stated, and that such failure to ring the bell or blow the whistle contributed to plaintiff's injuries, you will find for the defendant.'" "The court erred in not defining to the jury the duty owed by defendant under the law with reference to the ringing of a bell or blowing of a whistle, the same being defined by statute, and being the only issue of negligence under the petition in the case." The ruling complained of in these assignments presents reversible error. The petition, in general terms, alleges that appellee's injuries were the result of negligence upon the part of appellant, but, in addition, it attempts to set out the facts or acts of negligence relied on, and this was the failure to ring the bell or blow the whistle within 80 rods of a public crossing. The charge of the court was not confined to this issue, and did not charge on the question as raised by these assignments. This should have been done. The charge should only present the issues raised by the pleadings, and should not extend beyond it, although evidence of other issues may be introduced. What has been said in...