Johnson v. Gulf, C. & S. F. Ry. Co.

• Decision Date: 17 January 1893
• Citation: 21 S.W. 274
• Court: Texas Court of Appeals
• Parties: JOHNSON et al. v. GULF, C. & S. F. RY. CO.

21 S.W. 274

JOHNSON et al. v. GULF, C. & S. F. RY. CO.

Court of Civil Appeals of Texas.

January 17, 1893.

Appeal from district court, Johnson county; J. M. Hall, Judge.

Action by Nettie M. Johnson and others against the Gulf, Colorado & Santa Fe Railway Company for killing plaintiff's intestate at a railway crossing. There was a judgment in defendant's favor, and plaintiffs appeal. Reversed.

The court, inter alia, charged that gross negligence is an entire failure to exercise care, or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the interest and wellfare of others; and that proximate cause is when the injury is the direct and immediate result of the act causing the injury, and which would not have occurred but for such act.

The other facts fully appear in the following statement by HEAD, J.:

On the 5th day of August, 1886, William A. Johnson was run over and killed by one of the hand cars of appellee where its track crosses a wagon road at what is known as "McPherson's Crossing," in Johnson county, Tex. It seems that deceased was blind, and was in the rear end of a wagon, leading a horse, which wagon was being driven by his father, George Johnson. The two were going after some water for their joint use, and to also give water to the horse which was being led, which was also their joint property. In approaching the crossing, the driver, George Johnson, saw the hand car when it was at a distance of 500 or 600 yards, and there was nothing to prevent the hands on the car from also seeing the wagon. When the wagon reached the crossing the car was at a distance of from 50 to 65 yards, and it seems that the horse deceased was leading, just as the wagon got over the track, became frightened and pulled back, throwing deceased upon the track in front of the car, where he was struck. From the injuries so received the said William A. Johnson died on the 6th of August, 1886, and appellants instituted this suit to recover the damage caused them by such death.

Henry & Green, for appellants. Smith & Davis and J. W. Terry, for appellee.

HEAD, J., (after stating the facts.)

Appellants complain of the action of the court in giving the following charge to the jury: "If the defendant's employes in charge of the hand car saw the wagon of G. W. Johnson, in which deceased was riding, stop before reaching the railroad, and were thereby led to believe no effort would be made to cross said railroad until it passed the crossing, then it was not negligence in said employes not to stop said hand car," etc. Some of the witnesses testified that when the wagon got near the crossing it stopped, and then started again; while others testify that no stop was made; and still others that there was no entire stop, but only a slight checking of the horses. That this charge, in this state of the evidence, was upon the weight of the evidence, and was therefore improperly given, is well illustrated by quite a number of cases in this state. See Railway Co. v. Roberts, 20 S. W. Rep. 960, (decided by us at this term, where a number of these cases are referred to;) also Costley v. Railway Co., 70 Tex. 112, 8 S. W. Rep. 114. The question as to what does or does not constitute negligence where there is a conflict in the evidence is one peculiarly for the jury. The charge is also objectionable in that the jury might have understood therefrom that the court was of opinion that the wagon did stop, and only left it for them to decide as to whether or not appellee's employes saw it, and were influenced thereby, when, as we have seen, it was a controverted question as to whether or not the wagon stopped at all. The giving of this charge will therefore necessitate a reversal of the judgment, and, without undertaking to discuss the several errors assigned by appellants seriatim, we will attempt to give as concisely as possible our views of the law applicable to the case, as it may be presented upon another trial.

The grounds relied upon by appellants in their petition for recovery are two: First, they allege gross negligence on the part of the servants of appellee in charge of the hand car; second, they allege negligence on the part of appellee in permitting the use of a defective hand car, or of a hand car not provided with the most efficient kind of brakes. This death having been caused in 1886, prior to the amendment of our statute upon this subject, to entitle appellants to recover on account of the acts of the servants of appellee it will be necessary that the evidence show gross negligence on their part. Railway Co. v. Kutac, 76 Tex. 474, 13 S. W. Rep. 327; Railway Co. v. Hill, 71 Tex. 451, 9 S. W. Rep. 351. It is doubtful whether in this class of cases it is advisable for the trial court to attempt to define what is meant by the term "gross negligence." Railway Co. v. Shuford, 72 Tex. 170, 10 S. W. Rep. 408. But, if it be deemed necessary to make this attempt, the definition as given in the charge of the court does not seem to us to be objectionable. Railway Co. v. Kutac, supra; Railway Co. v. Cocke, 64 Tex. 156; Railway Co. v. Shuford, supra. If, however, appellants base their right to recover on the negligence of appellee...