Missouri, K. & T. Ry. Co. of Texas v. Rodgers

• Decision Date: 15 June 1896
• Citation: 36 S.W. 243
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. RODGERS.
• Court: Texas Supreme Court

Page 243

36 S.W. 243

MISSOURI, K. & T. RY. CO. OF TEXAS v. RODGERS.

Supreme Court of Texas.

June 15, 1896.

Error to court of civil appeals of Fourth supreme judicial district.

Action by Sam H. Rodgers, by next friend, against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment of the court of civil appeals (35 S. W. 412) affirming a judgment in favor of plaintiff, defendant brings error. Reversed.

Stanley, Spoonts & Thompson, for plaintiff in error. Smith & Wear, for defendant in error.

BROWN, J.

Sam H. Rodgers, by his next friend, sued the railway company to recover damages for personal injuries inflicted upon him by the alleged negligence of its servants in operating one of its hand or push cars. Upon a trial before a jury he recovered the sum of $5,000, from which the railway company appealed, and which judgment was affirmed by the court of civil appeals. The conclusions of fact, as found by the court of civil appeals, are as follows: "The appellee, at the time of the accident, a boy between twelve and thirteen years old, of immature judgment and discretion, was negligently permitted by appellant's servants, while operating on its road one of its hand cars, to board said hand car while in motion, which was dangerous to a child of appellee's immature discretion, which danger was known to appellant's servants in charge of and operating the car; and afterwards, through the careless and negligent acts of appellant's servants in operating the car, the appellee was, without any contributory negligence on his part, thrown upon the track, and run over by the car, whereby he sustained serious and permanent injuries, to his damage in the sum of $5,000." The trial court charged the jury as follows: "If you believe that said plaintiff was ordered to keep off of said car, but that he failed to heed said order, and did enter said car, and was thereby injured as alleged in the petition, and that he had sufficient intelligence to comprehend the dangers incident to his boarding the car; or shall further believe that he was injured by the gross negligence, if any, as hereinbefore explained; that such negligence, if any, was the immediate proximate cause of said injury,—then you will find for the plaintiff." The plaintiff in error assigned error upon this charge in the court of civil appeals, which was overruled, and the action of the court in giving the charge and of the court of civil appeals in refusing to sustain the assignment of error is presented in the petition of the plaintiff in error as a ground for a reversal of the judgments of said courts. The trial court, in its charge, defined gross negligence as follows: "Gross negligence, as the words are used in this charge, means the omission of that care which even inattentive and thoughtless men never fail to take of their own property." The effect of the charge of the court first copied above is to tell the jury that, if the plaintiff was guilty of negligence which proximately contributed to his injury, yet, if the employés of the defendant were guilty of gross negligence, which caused the injury, the plaintiff would be entitled to recover judgment for such injury. The facts stated in the charge would unquestionably constitute contributory negligence on the part of plaintiff, and, unless the doctrine of comparative negligence obtains, this charge must be held incorrect. Our courts have expressly repudiated the doctrine of comparative negligence whereby a party who is guilty of negligence himself is permitted to recover of another party because the defendant is guilty of a greater degree of negligence. McDonald v. Railway Co., 86 Tex. 1, 22 S. W. 939. In the case last cited this identical question was before the court, and it was then said: "The question, then, is whether the ordinary negligence of the plaintiff will defeat a recovery if the negligence of the defendant contributing to the injury is gross. In Railway Co. v. Garcia, 75 Tex. 591, 13 S. W. 223, it is said: `The effect of contributory negligence on plaintiff's right to recover has been recognized in all cases passed upon by this court in which it was involved, and the rule fixing liability or denying it on the basis of comparative negligence has been condemned; but it seems to us that the doctrine here invoked on behalf of the plaintiff is the rule of comparative negligence in its simplest form.' That rule is defined by Sherman & Redfield as follows: `The true rule of comparative negligence must be that, if the defendant has been guilty of gross negligence, and the plaintiff guilty only of such ordinary negligence as,...