International & G. N. R. Co. v. Vanlandingham

• Decision Date: 01 February 1905
• Citation: 85 S.W. 847
• Parties: INTERNATIONAL & G. N. R. CO. v. VANLANDINGHAM.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

85 S.W. 847

INTERNATIONAL & G. N. R. CO. v. VANLANDINGHAM.^*

Court of Civil Appeals of Texas.

February 1, 1905.

On Rehearing, March 15, 1905.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by James Vanlandingham against the International & Great Northern Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed. Motion for rehearing overruled.

Hicks & Hicks, for appellant. Perry J. Lewis and H. C. Carter, for appellee.

FLY, J.

This is an appeal from a judgment for $25,000 obtained by appellee against appellant, it being alleged in the petitions that appellee had received personal injuries through the negligence of appellant in permitting a number of cars to stand on its main line over which appellee, as engineer, was running a train, and in not having a flagman out to warn him of the situation of the cars, or in some way notify him of the danger, and through such negligence appellee ran his locomotive into the cars and was injured. We find that appellant was guilty of negligence in having freight cars on its main line in a gravel pit near Hallsburg, and in not protecting the train on which appellee was engineer by sending out a flagman, or in some way notifying appellee that the cars were on the track; that through such negligence the locomotive, under charge of appellee, ran into the cars, and seriously and permanently injured him. We find that he was not guilty of contributory negligence.

There is no merit in the first assignment of error. The complaint is that the court did not instruct the jury that there was a bulletin on the board at Marlin notifying engineers in charge of freight trains to bring their trains to a full stop where the steam shovel was working, 3½ miles north of Hallsburg, and not to proceed until they saw that the track was clear. This question was fully passed upon by this court in the case of Railway v. Pendleton, 70 S. W. 996, and it was held: "There is no affirmative error in the charge. It merely failed to withdraw a fact from the jury which appellant claims was established as a matter of law. If appellant deemed that the evidence was such as warranted its withdrawal, as an issue of fact, from the jury, it should have by a special charge requested the court to do so. Having failed to do this, the main charge being a correct enunciation of the law, it is in no attitude to complain." Appellant asked no special charge giving its view of the testimony, and is therefore in no position to complain. The evidence also raises a doubt as to whether there was a bulletin board at Marlin and as to the existence of any bulletin of the purport claimed by appellant.

The second assignment of error attacks the charge of the court because the court did not assume that it was the duty of appellee to examine the bulletin board, and because it led the jury to believe that there might be "facts and circumstances" in evidence before the jury that would exonerate appellee from examining the board. What has been said in connection with the first assignment of error applies with equal force to this. The facts in the case show that appellee had been taken from his regular division, and sent out on a run on a division of the railroad with which he was not acquainted; that no time card was given him, as should have been done; and that when he reached Marlin after midnight he searched the room for a bulletin board, and found none. There was testimony tending to show that, when an engineer was sent over a part of the railroad with which he was not acquainted, orders should be given informing him of his duties. The court did not err, therefore, in instructing the jury to inquire as to whether, "under all the facts and circumstances in evidence," it was the duty of appellee to examine the bulletin board.

It was not error to instruct the jury that, in order to find for appellant, they must find that if appellee had examined the bulletin board he would have been notified not to proceed until he saw that everything was clear. Appellee was a stranger to the road, and had no time card furnished him, and, if he had read that "all freight trains will come to a full stop where the steam shovel is working, three and a half miles north of Hallsburg," it would have given him no information as to where he ought to stop. He knew nothing of where Hallsburg was, and notice to stop 3½ miles from Hallsburg could convey no information to him.

It was in evidence that bulletins at Marlin were kept in clips, and that there were a great number of them in the clips, and that no system was used in arranging them, and it was therefore not error to submit to the jury as to whether it was negligence on the part of appellee not to examine the bulletins.

The fifth assignment of error is obscure as to the ground on which it attacks the charge, and it is not followed by any proposition elucidating it. It should not be considered. We will say, however, that the charge was not affirmatively wrong in charging that more should be found by the jury than was necessary to justify a verdict for appellant. Appellant asked no special charges restricting the charge of the court. Railway v. Hill, 95 Tex. 629, 69 S. W. 136.

There is nothing "misleading or confusing," as contended through propositions under the sixth assignment of error, in the charge of the court which instructed the jury to "consider and look at all the surrounding facts and circumstances in evidence before you, and from them determine whether or not the plaintiff acted as a person of ordinary prudence would have acted under the same or similar circumstances." There was no other way to determine whether appellee was guilty of contributory negligence except by a consideration of the facts and circumstances in evidence, and surely to so tell the jury could not have misled or confused them. It is admitted that the charge states a correct proposition of law, and, if appellant desired any elucidation of it, a special charge should have been asked.

The seventh assignment of error complains of the refusal to give a certain special charge, but what it is does not appear in the brief, but this court is referred to a certain page of the transcript for the special charge. This is a failure to comply with the plain requirements of the rule, and it is not incumbent on this court to search the record to ascertain what the charge was that appellant desired...