International & G. N. Ry. Co. v. Bartek

Decision Date31 March 1915
Docket Number(No. 5460.)<SMALL><SUP>†</SUP></SMALL>
Citation177 S.W. 137
CourtTexas Court of Appeals
PartiesINTERNATIONAL & G. N. RY. CO. v. BARTEK.

Appeal from District Court, McLennan County; Tom L. McCullough, Judge.

Action by John Bartek against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Neff & Taylor, of Waco, for appellant. R. H. Kingsbury and E. J. Clark, both of Waco, for appellee.

Findings of Fact.

JENKINS, J.

This is a suit brought by appellee to recover damages for personal injuries alleged to have been suffered by reason of the negligence of appellant. Appellee alleged that he was a caretaker on a car in which was being shipped household goods belonging to his father, and as such caretaker was a passenger on appellant's road. The negligence alleged was that defendant's line of track and roadbed were not properly or adequately ballasted; that the rails were loose and insecurely fastened to the ties; that the ties were old and worn, and the general condition of said track was unsafe and dangerous for the transportation of freight and passengers at the time in question; that at the time of the wreck the defendant's train was being operated at a rate of speed which, by reason of the unsafe condition of the track, was dangerous.

Appellant excepted to that portion of plaintiff's petition which alleged that the general condition of said track was unsafe and dangerous, which exception was by the court sustained, and appellee thereupon filed a trial amendment, omitting such general allegation. Appellant specially denied that its roadbed was not properly or adequately ballasted, that the rails were loose or insecurely fastened to the ties, or that the ties were old and worn, or that at the time of the wreck it was operating its train at a rate of speed which was dangerous, taking into consideration the condition of the track, and specially alleged to the contrary; and further:

"That it does not know the cause of the wreck, unless it be that the same was caused by reason of unprecedented rainfall and overflow, at and around and about said point on its track and throughout a large area of territory throughout Central Texas, especially that portion of Texas through which the Brazos river runs and is traversed by this defendant's line of road, and that such wet and overflowed condition was caused and occasioned by the act of God; that the entire country for many miles around and about the point where this accident occurred had, for a number of days, been flooded by unusual and unprecedented rainfalls, and this defendant believes that said unprecedented rainfalls and the act of God were the direct and proximate cause of the injury complained of by this plaintiff, and for which it is in no sense liable."

Appellee by supplemental petition denied the alleged facts constituting the act of God. Appellant also pleaded that appellee was guilty of contributory negligence in riding in the car containing the shipment in question, instead of riding in the caboose of such train, in that he chose the more dangerous of the two places in which to ride, which allegation was specially denied by appellee.

The evidence shows that appellee was a caretaker, riding in a car containing household goods and animals belonging to his father; that he was properly in said car, and was not guilty of contributory negligence by riding therein; that the car in which he was riding, and other cars in said train, turned over; that the wreck was not occasioned by the act of God as alleged by appellant; that by reason of said accident he suffered serious and permanent injuries; that at the time of the wreck the train was being operated at the rate of about 40 miles an hour.

The trial before a jury resulted in a verdict and judgment in favor of appellee for the sum of $2,000. No error is assigned as to the amount of said judgment.

Opinion.

Appellants' first, fourth, fifth, sixth, seventh, eighth, and ninth assignments of error relate to the charge given by the court. No bills of exception were taken to the charge of the court, for which reason these assignments will not be considered. This point has been so frequently decided by this and other Courts of Civil Appeals as to render it unnecessary to cite authorities in support of this ruling.

Appellant's second assignment of error is as follows:

"The court erred in refusing to give special charge No. 4 requested by the defendant, which is as follows: `You are instructed that the burden of proof is on the plaintiff to show by a preponderance of the evidence that the wreck in question was caused by one or more of the acts of negligence complained of by plaintiff in his petition, and, unless he has done so, you will return a verdict for the defendant. And even though you may believe from the evidence that the defendant was guilty of negligence in some other respect than that alleged by the plaintiff, and that such negligence caused the injuries complained of, you should find for the defendant.'"

The court in its principal charge set out fully the allegations in the pleadings of both plaintiff and defendant, and instructed the jury as follows:

"You are instructed that if you believe from the evidence that defendant's roadbed was not properly or adequately ballasted, so as to make the same secure or firm as a foundation for its line of track, or that the rails thereof were loosely or insecurely fastened to the ties, or that the ties were old and worn, or if you should believe from the evidence that defendant's train at the time of the wreck in question was being propelled at a rate of speed which, by reason of the condition of the track, was dangerous, and that by reason of any or all of said conditions, if any, defendant's train was caused to wreck, and you believe that defendant in any or all of these respects had failed to use the highest degree of care in the manner as hereinbefore charged you, you are instructed that defendant would be guilty of negligence; and, if you so believe from the evidence that the plaintiff was injured as a direct and proximate result thereof; you are then instructed to find for the plaintiff."

The court further instructed the jury that the burden was on the plaintiff to establish by preponderance of the evidence whether or not he has suffered injury and damage, as alleged by him, as the proximate result of such wreck, and that the burden was on the defendant to establish, by a preponderance of the evidence, the fact that said wreck was not caused by its failure to exercise the highest degree of care in any of the ways as alleged by the plaintiff as the proximate cause of his injuries, if any.

The charge of the court in placing the burden on the defendant to establish by a preponderance of the evidence its lack of negligence was erroneous, and the special charge requested is the law of the case and should have been given. The Court of Civil Appeals for the Second District, in Railway Co. v. Barnes, 168 S. W. 992, and in Elser v. Putman, 171 S. W. 1052, held that under the act of 1913 (Gen. Laws, p. 113) the failure to give a special charge, though correct, would not be considered where it contradicted the general charge to which no exception was taken. We quote from the opinion in Railway Co. v. Barnes, supra, as follows:

"`Article 2061. The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing article.' * * * If, as provided by the amended statutes, a charge given without objection must be regarded as approved, it follows logically, we think, that parties who thus approve the charge are in the same situation as if that charge had been requested by them. And according to a well-established rule of decisions in force before the enactment of that statute, if a party requests two different instructions upon the same issue and one of them is given, he cannot complain of the refusal of the other."

The statute requiring objections to the charge given by the court to be shown by a bill of exceptions in order to bring them to this court for review is mandatory, as this and other Courts of Civil Appeals have frequently held; and the language that "the ruling of the court in giving, refusing or qualifying of instructions to the jury shall be regarded as approved, unless excepted to," is plain and unambiguous, and we concur in the ruling of the Court of Civil Appeals of the Second District in its construction of this statute as above set out, for which reason we overrule appellant's second assignment of error.

Should we have considered said second assignment, we would not have held that the error complained of was reversible error under rule 62a for the government of the Courts of Civil Appeals. The finding of the jury in appellee's favor under the charge of the court necessarily included the finding as a fact that appellant's roadbed was defective in the manner alleged by appellee. The evidence sustains this finding, and we do not believe that their verdict would probably have been different had the court charged that the burden of proof as to such conditions was on appellee. Therefore, believing that the error complained of was not calculated to cause, and probably did not cause, the rendition of an improper judgment in the case, we would have been constrained to overrule appellant's second assignment of error, had we felt at liberty to consider the same.

Appellant's third assignment relates to the refusal of the court to peremptorily instruct the jury to return a verdict for the defendant. For the reasons above stated, this charge was properly refused. In this connection we will state that there was no testimony raising the issue of contributory negligence on the part of appellee; for which reason we overrule appellant's tenth...

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5 cases
  • Stillman v. Hirsch, 6975.
    • United States
    • Supreme Court of Texas
    • December 9, 1936
    ...of Texas v. Downs (Tex.Civ.App.) 186 S.W. 864; Cummens v. Owen Bros. Const. Co. (Tex.Civ.App.) 192 S.W. 792; International & G. N. Ry. Co. v. Bartek (Tex.Civ.App.) 177 S.W. 137, 145; I. & G. N. Ry. Co. v. Bland (Tex. Civ.App.) 181 S.W. 504; Palmer v. Logan (Tex.Civ.App.) 189 S.W. 6. With re......
  • Texas Emp. Ins. Ass'n v. Hatton
    • United States
    • Supreme Court of Texas
    • February 11, 1953
    ...manner examine the eye, and give in testimony their opinion as a result of such examination.' In the case of International & G. N. Ry. Co. v. Bartek, Tex.Civ.App., 177 S.W. 137, affirmed Tex.Com.App., 213 S.W. 602, it was held that the trial court did not err in refusing to require a plaint......
  • Crum v. Thomason
    • United States
    • Court of Appeals of Texas
    • December 22, 1915
    ...c. 59, p. 113, and therefore must be held to have waived said objection. See I. & G. N. R. R. Co. v. Frank, 177 S. W. 168; Same v. Bartek, 177 S. W. 137; Floegge v. Meyer, 172 S. W. 194. The giving or refusing of charges cannot be reviewed by an appellate court unless bills of exception are......
  • National Equitable Soc. v. Reveire
    • United States
    • Court of Appeals of Texas
    • January 8, 1919
    ...to the failure of the court to submit these issues, but made no objection to the peremptory instruction given by the court. In Railway Co. v. Bartek, 177 S. W. 137, the majority of this court held that an appellant must be held to have waived all objection to the charge of the court, where ......
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