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

• Decision Date: 23 June 1891
• Citation: 17 S.W. 47
• Court: Texas Supreme Court
• Parties: INTERNATIONAL & G. N. R. CO. v. SIMCOCK.

17 S.W. 47

INTERNATIONAL & G. N. R. CO. v. SIMCOCK.

Supreme Court of Texas.

June 23, 1891.

Commissioners' decision. Section B. Appeal from district court, Hays county; H. TEICHMUELLER, Judge.

Action for personal injuries by W. R. Simcock against the International & Great Northern Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

Thos. H. Franklin and W. O. Hutchison, for appellant. Ed. R. Kone and O. T. Browne, for appellee.

TARLTON, J.

W. R. Simcock brought this suit in the district court of Hays county to recover of the International & Great Northern Railroad Company $25,000, damages for personal injuries received by him in a wreck of one of defendant's passenger trains, on which plaintiff was a passenger. Plaintiff alleged that the coach which he occupied was derailed, overturned, and that he was hurt thereby, and that said derailment was caused by the railroad track being in bad condition and out of repair. Defendant answered by special exception, general denial, and plea of not guilty. The case was tried by a jury, who returned a verdict for the plaintiff in the sum of $2,750. From the judgment entered on this verdict this appeal is prosecuted. The appellant alleges that the court erred in the following paragraph of its charge to the jury: "The plaintiff, W. R. Simcock, sues defendant company for alleged injuries inflicted upon him by the derailment of a train on which he was traveling as a passenger, occasioned by the negligence of defendant;" that this charge is upon the weight of evidence, in that it assumes as a fact that plaintiff's injuries were caused by the negligence of defendant. We do not think that the instruction merits the criticism to which appellant subjects it. It is evident that the expression "occasioned by the negligence of defendant" is to be read with reference to the preceding expression, "alleged injuries inflicted upon him." A paraphrase which we would consider entirely natural and reasonable would cause the instruction to read thus: "The plaintiff, W. R. Simcock, sues defendant company for injuries alleged to have been inflicted upon him by the derailment of a train on which he was traveling as a passenger, and alleged to have been occasioned by the negligence of defendant." The charge was not upon the weight of evidence, and could not have misled the jury.

Appellant, in another assignment of error, complains of the following instruction: "If you should find for the plaintiff, you will assess...