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

• Decision Date: 20 October 1891
• Citation: 17 S.W. 375
• Parties: GULF, C. & S. F. RY. CO. v. BOX.
• Court: Texas Supreme Court

Page 375

17 S.W. 375

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

Supreme Court of Texas.

October 20, 1891.

Commissioners' decision. Section A. Appeal from district court, McLennan county; EUGENE WILLIAMS, Judge.

Action by R. D. Box against the Gulf, Colorado & Sante Fe Railway Company for personal injuries to his wife. Judgment for plaintiff. Defendant appeals. Affirmed.

J. W. Terry, for appellant. Burrow & Kincaid and A. C. Prendergast, for appellee.

MARR, J.

The plaintiff brought this suit in the court below, and recovered damages of the defendant company, on account of personal injuries to his wife, alleged by him to have been inflicted as the direct consequence of the "negligent and wanton" acts of the engineer or other employees in charge of the defendant's train of cars, "in blowing and continuing to blow the whistle of the engine," attached to said train, "loud and shrill," and "when there was no reasonable excuse, occasion, or necessity for blowing said whistle," whereby the horses to the wagon in which plaintiff's wife was traveling became frightened, ran away, and overturned the wagon, "and threw her violently to the ground," etc. "That the engineer and fireman saw that plaintiff's team was frightened by the blowing of said whistle, and in time to have ceased said blowing, and to have stopped said train, and thus have prevented the injury," etc. It must be held that the jury found that the injuries were the result of wanton acts and omissions upon the part of the defendant's servants, for the court distinctly instructed the jury to find for the defendant unless they believed from the evidence that "the blowing of the whistle" complained of was done both "negligently and wantonly," and under such circumstances as did not justify the sounding of the whistle under the law, which the court also explained to the jury. The appellee objects to a consideration of any of the assignments of error, because each assignment and its proposition is not separately presented in the brief. All of the assignments relied upon are copied in the brief, and each of them is entirely clear, and "a distinct specification" of the error alleged. Appellant's counsel, however, has grouped those relating to the same subject, retaining their proper numbers, and has made an appropriate statement from the record under the groups and of his propositions, (numbering them,) whenever the assignment is not in the form of a proposition. No motion has been made to suppress the briefs for want of form, (if tenable,) and we think that appellant is entitled to a consideration of the assignments. In the present instance we have had no difficulty in ascertaining the questions at issue from the briefs, and the method adopted of presenting them has facilitated our labors.

The 5th, 6th, 7th, 8th, 9th, 10th, and 12th assignments of error relate entirely to the refusal of the court below to allow seven special instructions requested by the defendant's counsel. These instructions present separately, in different form, and with merely verbal variations, the single issue of contributory negligence or not upon the part of the plaintiff. We will give a summary of the evidence upon which these charges are predicated, as well as that of the court upon the same subject. The plaintiff was traveling through McLennan county, in August, 1886, with his wife and four small children, in "a four-horse wagon," and along a public road, which intersected, or had been intersected by, the defendant's railway track and bed. The point of intersection was a public crossing, and the plaintiff was approaching towards it in his wagon, while his two oldest sons (the eldest 9 years of age) "were traveling horseback, and driving a small bunch of cattle, about eighteen head." The direction the party was going was about north-east. The railway track extended nearly due north and south. The plaintiff's party was, therefore, to the west of the railway. When the wagon (driven by the plaintiff) had reached a point shown by actual measurement to be 273 feet from the public crossing on the railroad, (and 196½ feet from the nearest point to the railroad track,) the cattle in charge of the boys being ahead and nearer to the railway, the plaintiff, according to his testimony, discovered the smoke of an advancing train, running southward, "about 500 yards from him," and north of the crossing. He heard the engine whistle for the crossing, (presumably at the proper distance, "80 rods" from it,) and at that time his "horses noticed it, and threw up their heads," but did nothing else, until subsequently, when the whistle was again sounded at or near the crossing, and repeatedly thereafter, "quick, sharp, and loud," etc. It will be understood that we are not now giving all of the testimony, but simply that in relation to the question in hand. When the whistle was first sounded north of the crossing, the plaintiff then "had hold of the lines." Observing the proximity of his cattle to the track, he "stopped his team, and gave the lines to his wife, and went to turn the cattle back from the railroad track to keep them from crossing." He and his boys succeeded in doing this, and, getting between them and the track, "turned them back" towards the west. "By this time the train was forty or fifty yards from the road crossing, and plaintiff at once returned to his wagon, and took hold of the rear wheel horse;" when the renewal and continuation of the whistling of the engine caused the horses to take both fright and flight, despite his efforts to control them. "His horses were gentle, used to work, and none of them but what his little boys could drive." "His wife could drive them, and had done so often, — whenever it had been necessary for him to get out of the wagon." His "team was used to trains as usually operated," and had been near when "they were switching," and the horses had never been "scared before," and had been driven "at crossings several times when trains were passing."

The contention of appellant seems to be that it was negligence upon the part of the plaintiff to leave his wagon and horses at all, under the circumstances above enumerated, and that the charge of the court upon the subject does not sufficiently embrace this phase of the case. There is evidence of one witness, though not very distinct, that appellee admitted to the attending physician, immediately after the injury of the wife, that when he started from the wagon, in order to rescue the cattle, "he put down the lines," instead of handing them to his wife, etc. This was most positively denied by the plaintiff, and he is corroborated by the testimony of Henry Gibbs that Mrs. Box had hold of the horses, and then Mr. Box came and undertook to hold them. He was about 10 feet from his horses when they first became frightened, and was on the ground. Upon the issue which we are now considering the court instructed the jury as follows: "Yet the law devolved upon the plaintiff the duty of exercising such ordinary care in approaching said railroad with his family, team, and cattle as would be used by a prudent person under the circumstances; and if from the evidence you believe that he failed to exercise such care, and that thereby he contributed to the runaway of said team, then the plaintiff would be guilty of what is known in law as `contributory negligence;' and if you so find you will return a verdict for the defendant, although you may also believe the defendant's employes blew the whistle negligently and wantonly." The appellant's counsel contends that the effect of the words italicized in the foregoing instruction was to limit the question of contributory negligence to the mere act of plaintiff "in approaching the crossing," and excluded his conduct in relation to his team and family, and in failing to remain at the wagon, etc. Now, this charge most evidently does not say nor mean any such thing. The contention of learned counsel is for a refinement of distinction, which we do not think admissible in the present instance. Were we to now draw such distinction from the language used, then we would be at least reasonably certain that we would be doing something which was not done by the jury in reviewing this instruction. The average jury, however intelligent, it is not believed, are in the habit, when applying the law in the concrete, of viewing the judge's charge with too critical an eye, or of eagerly dissecting words and clauses like a skillful philologist, to arrive at every shade of meaning or possible application. We think the jury which rendered the verdict below understood from the language of this instruction, or ought to have...