Gulf, C. & S. F. Ry. Co. v. Johnson
| Decision Date | 24 November 1905 |
| Citation | 90 S.W. 164 |
| Parties | GULF, C. & S. F. RY. CO. v. JOHNSON et al. |
| Court | Texas Supreme Court |
Action by Alice Johnson and another against the Gulf, Colorado & Santa Fé Railway Company. A judgment in favor of plaintiffs was affirmed by the Court of Civil Appeals (82 S. W. 822), and defendant brings error. Reversed.
J. W. Terry and A. H. Culwell, for plaintiff in error. J. W. Moffett and A. M. Monteith, for defendants in error.
Alice is the mother of Rogers Johnson, a minor, and they brought two separate suits, which were consolidated, to recover damages which they had sustained from a personal injury alleged to have been inflicted upon the boy through the negligence of the servants of plaintiff in error. The claim of plaintiffs was that Rogers Johnson was run over by the cars while he was crossing the track of plaintiff in error upon a path used as a footway by the public generally with the knowledge and consent of the railway company, and their evidence tended to sustain their claim. The trial court gave this instruction: "It is not necessary that a crossing over a railroad track, in order to make it a public crossing, should necessarily be one maintained or constructed for the use of animals, or vehicles, or a street crossing, but any place which is generally used, with the knowledge of the railway company or its employés in charge thereof, by the public as a crossing for pedestrians, would be in law a public crossing; and, if the place at which the said Rogers Johnson was injured had been prior to that time, and was being at that time, with the knowledge of the defendant or its employés in charge thereof, used by pedestrians as a place of crossing said track, then it was a public crossing." Other parts of the charge did not require of the defendant the observance, with respect to the place in question, of any of those precautions prescribed by law with reference to crossings such as it treats as public crossings, but left to the jury the question whether or not the defendant, in moving its cars across the pathway, had been guilty of negligence. In other words, the charge imposed upon the defendant only the duty which the law imposes of exercising ordinary care in passing such a place with its cars, and we are unable to see that the mere fact that the path was defined as a public crossing was injurious to defendant, or exacted of it more than was due from it with reference to the place as it was. We agree with the contention of plaintiff in error that the passway was not a public crossing in the sense that any measures of precaution which the statutes specifically prescribe were applicable to it, and on another trial this part of the charge might be omitted.
After the jury had considered the case for nearly two days' time without reaching an agreement, they came into court and asked instructions upon the following question: "Is it legal and right for a jury, in case they have failed to agree upon a verdict in a case, to make concessions in order to agree upon a verdict?" In response to which the court gave this instruction: "Answering your question, will say that it is entirely lawful and proper to make concessions, provided, of course, your verdict, as agreed to, is based alone upon the law as given in the charge, and the facts as you find them from the evidence." The testimony upon the material issues was sharply conflicting, and a verdict in favor of either party would have been supported by sufficient evidence, so that the admonition given that the verdict must be based alone upon the law and the facts found from the evidence was but a slight qualification of the instruction that it was not only legal, but proper, for the jury, after they had failed to agree, to make concessions in order to agree upon a verdict. We do not, however, base our decision that the instruction was erroneous upon the state of the evidence, nor upon the mere wording of the charge; for in our opinion the subject is one upon which the court should not have undertaken to advise the jury at all. We find a number of cases in which similar instructions have been held erroneous, the opinions, for the most part, combating the truth of the legal proposition contained in them as to the propriety...
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...ruled that the supplemental charge was coercive to the minority jurors and impermissible. Citing also Gulf, C. & S.F. Ry. Co. v. Johnson, 99 Tex. 337, 90 S.W. 164 (1905), the Court of Civil Appeals emphasized that it is improper for a court to advise the jurors on the manner in which they a......
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