Gulf, T. & W. Ry. Co. v. Dickey

• Decision Date: 07 June 1916
• Docket Number: (No. 2863.)
• Citation: 187 S.W. 184
• Parties: GULF, T. & W. RY. CO. v. DICKEY.
• Court: Texas Supreme Court

Page 184

187 S.W. 184

GULF, T. & W. RY. CO. v. DICKEY.

(No. 2863.)

Supreme Court of Texas.

June 7, 1916.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by William Dickey against the Gulf, Texas & Western Railway Company. To review a judgment of the Court of Civil Appeals (171 S. W. 1097) for plaintiff, defendant brings error. Judgments of the Court of Civil Appeals and district court reversed, and cause remanded to the district court for further trial.

Ben B. Cain, of Dallas, Sporer & McClure, of Jacksboro, and J. A. Wheat, of Seymour, for plaintiff in error. D. A. Holman, of Seymour, for defendant in error.

PHILLIPS, C. J.

The action was by William Dickey for the recovery of damages because of personal injuries suffered by his eight year old son, Maryland Dickey, through the act of Ed Moss, an engine hostler in the employ of the defendant railway company. The boy was scalded by steam and hot water escaping from a hose in an engine cab where he was at the time, the engine being then at a station in the charge of Moss who was preparing it for a run. The hose was used to sprinkle coal in the engine tender. It was connected with an injector by means of a valve. The injector was used to refill the engine boiler with water from the engine tank. When the valve connecting the hose with the injector was closed, no water or steam could escape through the hose. Just before the boy's injury Moss had been loading the engine tender with coal, and had used the hose for sprinkling the coal. He loaded some more coal into the tender and then proceeded to fill the engine boiler with water by turning on the injector. This caused steam and hot water to escape from the hose and scald the boy, the valve referred to being then open. Moss testified that after sprinkling the coal with the hose, he closed the valve, and that when he turned on the injector to fill the boiler with water he did not know the valve was open. A defense of the railway company was, that after Moss had closed the valve it was opened, without Moss's knowledge, by either Maryland Dickey or his brother, who was also upon the engine with him, or some unknown person. A verdict in favor of the plaintiff was returned in the sum of $750.00, for loss of the boy's services, extra services rendered by the plaintiff and his wife in nursing him, and for medical expenses incurred in his treatment.

The case for the plaintiff being that his minor son was upon the engine with the consent of the defendant's employé, Moss, — then in charge of the engine, the duty owing by the defendant under such circumstances was the use by Moss of ordinary care to avoid any injury to the boy while he was upon the engine. While Moss, in his use of the hose which caused the injury, was under the obligation of using the care of an ordinarily prudent person under like circumstances to prevent any injury to the boy by that means, this, according to the settled law, marked the extent of his duty. Moss having testified, as already stated, that he had previously closed the valve which connected the hose with the injector and that when he turned on the injector to fill the boiler he did not know the valve was open, if the jury believed his testimony and that an ordinarily prudent person would, under the same circumstances, have turned on the injector in the belief that no harm would result to the boy from the hose, the defendant would have been entitled to be acquitted of liability. On the other hand, the plaintiff would have been entitled to have the issue of Moss's negligence resolved against the defendant if the jury believed that under like circumstances an ordinarily prudent person would not have turned on the injector at the time without positively seeing that the valve connecting the hose with the injector was closed. After, in the second paragraph of the charge, defining negligence to be "the failure to do that which a person of ordinary prudence resting under legal obligations would have done under the particular circumstances, or the doing of that which such person under such obligation should not have done under like circumstances; the essence of the fault may lie in the omission or commission," the court, in the third paragraph of the charge, gave this instruction to the jury:

"You are further instructed that the law requires those in charge of dangerous machinery to use great care and prudence in operating such machinery as to avoid damage and injury to the persons and property of other people, and if by the want of such care and prudence injury is inflicted upon others without the fault of such others, such persons or companies operating such machinery must pay for such injuries or damages."

In the fourth paragraph the jury were told, "if the defendant delegates to its agents or employés a certain work, and the agent or employé in discharge of such work is guilty of negligence, as in the court's charge defined, such negligence would be that of the defendant, and if the servant of a railway company in charge of an engine was negligent, the company was responsible therefor."

No attempt was made in the charge to present, as the predicate for a recovery in favor of the plaintiff, the distinct issue of negligence pleaded in the petition, that is to apply the proper rule of law to the particular grounds of recovery relied on in the petition and raised by the testimony, in respect to Moss's turning on the injector with the valve connecting the hose with the injector, open; but, omitting any instruction of that character, in the eighth paragraph the jury was told, "if you find for the plaintiff under the instructions heretofore given you, you will allow him such damages," etc.

The instruction embodied in the third paragraph of the charge, above quoted, to the effect that the law requires those in charge of dangerous machinery to use "great care and prudence" in operating such machinery, and that if through the want of such care and prudence injuries inflicted upon others without their fault, such persons or companies operating such machinery must pay for such injuries or damages, was clearly an erroneous charge, since it defined the measure of the defendant's duty to be greater than the law imposes. It was in manifest contradiction of the second paragraph of the charge wherein, in substance, the jury was told that the exercise of ordinary care was the measure of duty under which it rested. Under the charge as a whole the jury was left without any proper direction for the determination of the question of the defendant's negligence. Looking to one part of the charge they would find an instruction that the defendant's employé Moss was negligent if he failed to use ordinary care, whereas in another portion of the charge was the instruction, in effect, that he would be guilty of negligence if he failed to use "great" care and prudence. It is settled in the decisions of this court, having been announced many times, that the giving of a contradictory charge does not correct the error committed by the court in another part of the charge upon a material issue; and that the only way to make the correction is to withdraw the erroneous instruction. M., K. & T. Ry. Co. v. Rodgers, 89 Tex. 675, 36 S. W. 243; I. & G. N. Ry. Co. v. Welch, 86 Tex. 203, 24 S. W. 390, 40 Am. St. Rep. 829; So. Kansas Ry. Co. v. Sage, 98 Tex. 438, 84 S. W. 814. This plainly erroneous instruction requires a reversal of the judgment if it was properly objected to by the defendant under the Act of the Thirty-third Legislature, Chapter 59, page 113, in relation to the presentation of objections to the court's charge, so as to make the error reviewable on appeal. The Court of Civil Appeals declined to consider the railway company's assignment of error in respect to this instruction, as well as all other assignments of error directed at the court's charge because, as held by it, no proper bills of exception were reserved thereto. We are accordingly called upon to construe this Act in connection with the method employed by the defendant's counsel in the presentation of their objections to the charge in the trial of the case.

The mere refusal of the Court of Civil Appeals to consider an assignment of error for reasons deemed by it sufficient does not present a question of substantive law, necessary to the jurisdiction of this court under subdivision 6 of Article 1521 as amended by the Act of the Thirty-third Legislature, Chapter 55, page 107, defining the appellate jurisdiction of the Supreme Court. For this reason, while differing from the view expressed in some of the decisions of the Courts of Civil Appeals, that by the Act in question a formal bill of exception is required in order to entitle a complaining party to a review on appeal of any particular part of the court's general charge, we have customarily declined to assume jurisdiction of cases involving the construction of this Act where the question presented to us was the mere refusal of the Court of Civil Appeals to consider an assignment of error in relation to the charge because of the failure, according to its view, to observe the requirements of the Act. If, however, the charge upon a material issue is prejudicially erroneous and the Court of Civil Appeals has improperly refused to consider the assignment of error touching it, a question of substantive law is presented; and, in cases in which the jurisdiction of the Court of Civil Appeals is not final, is entitled to be reviewed here on writ of error.

There appears in the transcript a document, shown to have been a paper filed in the case on the same day as the charge, denominated "Defendant's Exceptions to the Court's General Charge," duly signed by the attorneys for the defendant. It contains two specific objections or exceptions to the erroneous paragraph of the charge to which attention has been above directed, one of them being that it imposed upon the defendant a greater...