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

• Decision Date: 14 November 1906
• Citation: 98 S.W. 423
• Parties: INTERNATIONAL & G. N. R. CO. v. CRUSETURNER.
• Court: Texas Court of Appeals

98 S.W. 423

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

Court of Civil Appeals of Texas.

November 14, 1906.

Rehearing Denied December 19, 1906.

Appeal from District Court, Hays County; L. W. Moore, Judge.

Action by J. W. Cruseturner against the International & Great Northern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

S. R. Fisher, J. H. Tallichet, S. W. Fisher, N. A. Stedman, and John M. King, for appellant. Will G. Barber, for appellee.

EIDSON, J.

This was a suit by appellee against appellant to recover damages alleged to have been sustained by him on or about February 22, 1903, while traveling in the caboose of one of defendant's freight trains in charge of live stock being transported on said train. There was a trial before a jury which resulted in a verdict and judgment for appellee in the sum of $3,100.

Appellant's assignments of error from one to six inclusive complain of the action of the court below in overruling its general demurrer and certain special exceptions to appellee's petition. The petition in this case is practically the same as that passed upon and held by us not to be subject to general demurrer in the case of Cruseturner v. Railway Co. (Tex. Civ. App.) 86 S. W. 778, and, in our opinion, no sufficient reasons have been advanced by appellant requiring us to reverse that holding.

The court below only submitted to the jury, as ground of negligence on the part of the employés of appellant operating its train, their alleged failure to notify or warn appellee of the dangerous location of its car at the time of the accident; hence there was no reversible error in its refusal to sustain appellant's special exception to the part of appellee's petition alleging that appellant was negligent in not having its caboose supplied with a water-closet, and besides, in our opinion the absence of a closet might properly be considered by the jury in passing upon the question of whether appellant's employés were bound to know that appellee would be likely to leave the car at stops for the purpose of attending the calls of nature, and, in consequence thereof, would be negligent if they failed to warn him of the dangerous position of the car at stops or stations.

The action of the court below in overruling appellant's second special exception to appellee's petition was not erroneous because the question as to whether appellant was negligent in stopping the caboose on the trestle was not submitted to the jury.

Appellant's fourth and fifth assignments of error are overruled. As already stated, we think the petition clearly and specifically alleges facts sufficient to show it to have been the duty of appellant to warn appellee of the dangerous position of the car when it stopped and before the accident occurred.

Appellant's seventh special exception was properly overruled by the court. The acts of the brakeman in going out of the car immediately before appellee attempted to leave same, being manifestly for a like purpose as that of appellee, were proper to be considered by the jury on the question of due care by appellee in going out of the car at the time he did, and also upon the question as to whether it was the duty of appellant to anticipate that appellee might leave the car for the same purpose as the brakeman, and to warn him (appellee) of the danger in doing so. Without entering into a detailed discussion of the facts in the case as shown by the record, we are of opinion that they are sufficient to warrant the jury in finding the appellant guilty of negligence in not notifying or warning appellee of the danger in attempting to leave the car at the time he attempted to do so, and that such negligence was the proximate cause of appellee's injuries, and that such injuries were not the result of dangers ordinarily incident to travel by freight trains. And the testimony also justified the jury in finding that appellee was not guilty of contributory negligence in any of the respects alleged by appellant in its answer; and hence we overrule appellant's assignments of error from the seventh to the eleventh inclusive.

The court properly refused to give to the jury appellant's special instruction No. 3, as it was upon the weight of the testimony; and further, the court gave to the jury a proper charge upon the subject to which this special charge related, in view of the pleadings and evidence in the case.

Appellant's thirteenth assignment of error is overruled. Its requested special charge No. 4 should not have been given, because same is upon the weight of the testimony, it being a question of fact as to whether the stopping of the train with the caboose on the trestle was necessary in the operation of the train, and consequently, a risk ordinarily incident to travel on such train, upon which there was a conflict of evidence; and besides, the refusal of such charge was not prejudicial to appellant, as the jury, under the charge given them, were not authorized to base a recovery for appellee upon the negligence of appellant in stopping the caboose on the trestle, but were authorized to...