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

• Decision Date: 16 December 1895
• Citation: 33 S.W. 215
• Parties: INTERNATIONAL & G. N. R. CO. v. SEIN et al.
• Court: Texas Supreme Court

Page 215

33 S.W. 215

INTERNATIONAL & G. N. R. CO. v. SEIN et al.

Supreme Court of Texas.

December 16, 1895.

Certified question from court of civil appeals of Fourth supreme judicial district.

Action by Louisa Sein and others against the international & Great Northern Railroad Company for the death of the husband and father of plaintiffs, caused by defendant's negligence. From a judgment for plaintiffs, defendant appealed to the court of civil appeals, which certified a question to the supreme court for its determination.

For prior reports, see 26 S. W. 788, and 28 S. W. 286.

J. M. Duncan and Barnard & McGown, for appellant. Wright & Summerlin and Clark & Fuller, for appellees.

BROWN, J.

The court of civil appeals for the Fourth supreme judicial district certified to this court the following statement and question:

"The district judge gave the following charge to the jury: `It was the duty of the defendant and its agents and employés to use and exercise ordinary care and prudence in the operation of its trains and engines along and upon its track, and to use great care in the operation thereof when approaching public road crossings and street crossings; and it is the duty, when so approaching, to sound the bell of the engine continuously.' This is complained of as being incorrect, under the ruling in Railway Co. v. Smith, 87 Tex. 348, 28 S. W. 520. The charge was complained of in the motion for new trial.

"The following charge was asked by appellant, but refused: `The court charges you that it was the duty of the defendant railroad company and its agents and employés to use and exercise ordinary care and prudence in the operation of its trains and engines along and upon its tracks, and to use great care in the operation of said trains when approaching public road crossings and street crossings, and it was its duty, when so approaching, to sound the bell of the engine continuously for a distance of eighty rods before reaching said crossings; and if you believe from the evidence that the employés of the defendant company, or its receiver, T. M. Campbell, did use great care and prudence in approaching this West Commerce street crossing at the time of the accident, and did sound the usual signal of ringing the engine bell, then you will find for the defendant.'"

Question: "Did the request to give the charge last copied amount to a ratification or inducement of the above copied charge of court, and is appellant prevented thereby from taking advantage of errors in the charge of the court repeated in its requested charge?"

The provisions of our law pertinent to the question submitted are as follows: Rev. St. art. 1300: "After the conclusion of the argument, the court shall read to the jury the charges and instructions, if any, under the provisions of this title relating thereto." Article 1319: "Either party may present to the judge in writing such instructions as he desires to be given to the jury, and the judge may give such instructions or a part thereof, or he may refuse to give them, as he may see proper, and he shall read to the jury such of them as he may give." Articles 1318 and 1320 provide that instructions given by the court, and those requested by either party, and refused, shall be considered as excepted to, without the necessity of taking bills of exceptions thereto.

It is the right and duty of counsel engaged in the trial of a cause to aid the court in arriving at a correct solution of the legal questions involved in the case; and, to enable them to exercise this right and to perform the duty, the law confers upon them the privilege of requesting the court to give to the jury charges embodying the law and such counsel as appears to be applicable to the facts proved. In the absence of a statute upon the subject, the attorney might make his requests for instructions either in writing or verbally. 11 Am. & Eng. Enc. Law, p. 259. Our statute requires not only that the request be in writing, but that the proposition requested to be charged shall be formulated by the counsel as an instruction, so that it may be read by the judge to the jury. It is a general rule that, when counsel has requested the court to charge a given proposition of law, and it is given, if the charge requested and given is erroneous, such error cannot be taken advantage of by the party whose counsel made the request.

The question now before the court is, in substance: If, in the course of a trial, counsel requests the court to give an instruction to the jury, which is refused, but which in whole or in part is embraced in the charge of...