Hargis v. St. Louis, A. & T. Ry. Co.

• Decision Date: 05 November 1889
• Citation: 12 S.W. 953
• Court: Texas Supreme Court
• Parties: HARGIS <I>v.</I> ST. LOUIS, A. & T. RY. CO.

12 S.W. 953

HARGISv.

ST. LOUIS, A. & T. RY. CO.

Supreme Court of Texas.

November 5, 1889.

Appeal from district court, Titus county; W. P. McLEAN, Judge.

Snodgrass & Snodgrass, for appellant.

GAINES, J.

The appellant brought this suit against appellee to recover damages for personal injuries. The evidence showed that he had gone to Mount Pleasant in a wagon drawn by two males, and had started home. On approaching defendant's road, near the depot in that town, he discovered a freight train, with its engine, near the crossing, standing on the track. His mules became frightened at the engine, and unmanageable, when he alighted from the wagon, and drove them across the track on foot. Having passed the crossing, he halted his team very near it, and while in the act of mounting his wagon the whistle of the engine was blown, causing the mules to run away. He became entangled in the lines, and was drawn a considerable distance, and thereby received the injuries of which he complains.

The assignments of error are mainly to the charge of the court as given, and the refusal to give instructions asked by appellant. The first is that "the court erred in its charge to the jury as a whole, in failing to charge the degree of diligence required of the employes of the defendant, under the evidence in this case, in operating or running its engine or trains across a public street in town." We think the objection to the charge is not well taken. The court correctly instructed the jury under what facts, if found by them, the plaintiff would be entitled to recover. It is commendable in that it contains no abstract propositions.

The second assignment is that "the court erred in the part of its charge in paragraph four which reads as follows: `But he must also show by such preponderance of evidence that employes of defendant did intentionally frighten the team of plaintiff, and that he was thereby injured.'" If this instruction stood alone, the charge would perhaps be objectionable, on account of its failure to present the issue of the plaintiff's right to recover if defendant's employes blew the whistle knowing, or having reason to believe, that the noise would probably frighten the team, and endanger the safety of plaintiff. But in the same paragraph this issue is distinctly presented. It is again very clearly submitted in the subsequent paragraphs of the charge. The jury, in our opinion, could not have been misled by the instruction of which appellant complains.

The third assignment of error is as follows: "The court erred in those parts of its charge in ...