Houston & T. C. R. Co. v. Stribling

• Decision Date: 30 March 1927
• Docket Number: (No. 7088.)
• Citation: Houston & T. C. R. Co. v. Stribling, 293 S.W. 890 (Tex. App. 1927)
• Parties: HOUSTON & T. C. R. CO. et al. v. STRIBLING.
• Court: Texas Court of Appeals

Page 890

293 S.W. 890

HOUSTON & T. C. R. CO. et al. v. STRIBLING.

(No. 7088.)

Court of Civil Appeals of Texas. Austin.

March 30, 1927.

Rehearing Denied April 27, 1927.

Appeal from District Court, Llano County; J. H. McLean, Judge.

Action by W. F. Stribling against the Houston & Texas Central Railroad Company and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Garrett, Brownlee & Goldsmith and W. R. Smith, Jr., all of Austin, for appellants.

Wilburn Oatman, of Llano, and Carl Runge, of Mason, for appellee.

BLAIR, J.

As concerns this appeal, appellee sued appellant Gulf, Colorado & Santa Fé Railway Company for damages resulting from negligent failure to properly feed, water, and rest en route a shipment of 616 steers from Llano, Tex., to Fairfax, Okl., and on a jury trial recovered judgment for $1,895, with interest and costs; which judgment must be reversed because the court erred in its charge to the jury as pointed out in appellant's ninth proposition as follows:

"Having, on request of defendant, submitted the case to the jury on special issues, it was error for the court, over defendant's objections, to submit to the jury a general charge advising the jury that it was the legal duty of the carrier to transport the plaintiff's cattle within a reasonable time and with ordinary care and that a failure to do so would entitle the plaintiff to recover such damages from the carrier as he sustained; the same being contrary to the statute providing for submission of causes to a jury on special issues of fact, and was calculated to indicate to the jury how the questions submitted should be answered in order to insure recovery by the plaintiff."

The charge commences by summarizing the pleadings and contentions of the parties, and then instructs the jury that:

"Upon these pleadings and the evidence adduced thereon, certain issues of fact arise which it becomes the province of the jury to determine, viz. as to whether or not the damage to said cattle, if any, was occasioned by the negligence of the defendants, and, if so, the amount of damages so sustained, and by reason of whose fault. In order to assist you in answering the questions hereinafter submitted to you, for your determination, you are now instructed in the law applicable to the case as follows."

The instructions on the law of the case are general, such as that it was the duty of the initial and all connecting carriers to transport the cattle within a reasonable time and with ordinary care. Ordinary care and negligence are defined, and then the jury is told:

"If plaintiff sustained damages to his said cattle while being handled and transported by said defendants, or either of them, as the result of the negligence or want of ordinary care on the part of said defendants, he would be entitled to recover such damages as was sustained by him as the direct and proximate result of such negligence."

Following this is a general instruction on the measure of damages, and then the jury is instructed:

"Now, bearing in mind the foregoing instructions, you will determine the issuable facts arising in this case by answering the following questions: Did the cattle sustain injuries directly and proximately caused by the negligence or want of ordinary care on the part of the defendant Gulf, Colorado & Santa Fé Railroad Company?

"If you answer the next preceding question in the affirmative, then state the amount of such damages so sustained as the result of negligence or want of ordinary care on the part of said Gulf, Colorado & Santa Fé Railroad Company."

The charge as a whole is one which the law designates a "general charge." In effect it charges the jury to find a "general verdict," as that term is defined in article 2202, subd. 4, R. S. 1925, on answer in a certain way of the issues submitted. Where a case is submitted on special issues, the jury should not be instructed to find a general verdict on answer of certain of the issues in a certain way. Wichita Falls, R. & F. W. R. Co. v. Mendoza (Tex. Civ. App.) 240 S. W. 570. See, also, article 2190, Vernon's 1925 Annotated Statutes, note 20, and cases cited under topic, "Charges in Cases Submitted on Special Issues."

The charge is also a "general charge" in the sense that it instructs on the law pertaining to the whole...