Missouri, K. & T. Ry. Co. v. Long

• Decision Date: 23 November 1927
• Docket Number: (No. 996-4864.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 299 S.W. 854
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. LONG.
• Court: Texas Supreme Court

299 S.W. 854

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

(No. 996-4864.)^*

Commission of Appeals of Texas, Section A.

November 23, 1927.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by Mrs. S. H. Long, for herself as widow and for her children, against the Missouri, Kansas & Texas Railway Company of Texas, for the death of S. H. Long. Judgment for plaintiff was affirmed by the Court of Civil Appeals (293 S. W. 184), and defendant brings error. Reversed and remanded.

C. C. Hoff, of Dallas, Tyler & Hubbard, of Belton, and J. M. Chambers, of Dallas, for plaintiff in error.

Walker Saulsbury and Winbourn Pearce, both of Temple, for defendant in error.

CRITZ, J.

This suit was instituted in the district court of Bell county, Tex., by Mrs. S. H. Long, surviving wife of S. H. Long, deceased, for the use and benefit of herself and their minor children for the recovery of damages alleged to have been sustained by them on account of the death of their father, S. H. Long, alleged to have occurred at a crossing of defendant railroad in Bell county, Tex., near the city of Temple. A trial in the district court by jury on special issues resulted in a verdict and judgment for the plaintiff. Appeal was duly perfected to the Court of Civil Appeals for the Third District, which court affirmed the judgment of the district court (293 S. W. 184), and the case is before this court on writ of error granted on application of the railroad company.

At the request of the defendant in the district court, the cause was submitted to the jury on special issues, and special issue No. 1 submitted reads as follows:

"Do you find from a preponderance of the evidence that the conditions surrounding the crossing in question were such as to render that crossing more than ordinarily dangerous as a nighttime crossing?"

This issue was answered by the jury in the affirmative. The defendant in the trial court excepted to the charge of the court, on the ground that it nowhere told the jury what would constitute a more than ordinarily dangerous nighttime crossing, and requested the court to give the jury the following special charge:

"In considering your answer to special issue No. 1, you are instructed that a nighttime crossing would not be more than ordinarily dangerous unless its condition was such that a reasonably prudent person could not, by the exercise of ordinary care, use the same with safety."

The Court of Civil Appeals, in passing upon this assignment, says:

"Appellant's fourth and seventh propositions assert that the court erred in refusing to give certain requested special charges, explanations, or instructions in connection with special issues 1 and 2. Error is based solely upon the refusal to give the requested instructions, which are in effect but general charges, grouping certain facts and instructing the jury to answer the issues `No' if they found such state of facts to exist."

The Court of Civil Appeals here quotes the case of Freeman v. Railway Co. (Tex. Com. App.) 287 S. W. 902.

The Revised Civil Statutes of Texas 1925, art. 2189, reads as follows:

"In all jury cases the court may submit said cause upon special issues without request of either party, and, upon request of either party, shall submit the cause upon special issues raised by the pleadings and the evidence in the case. Such special issues shall be submitted distinctly and separately. Each issue shall be answered by the jury separately. In submitting special issues the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues. If the nature of the suit is such that it cannot be determined on the submission of special issues, the court may refuse the request to do so, but the action of the court in refusing may be reviewed on proper exception in the appellate court, and this article shall be construed in connection with the succeeding article."

This court has repeatedly held that, where a case is submitted to the jury on special issues, it is improper for the trial court to group the facts and special issues and so submit them to the jury as to call for a general verdict. Freeman v. Railway Co. (Tex. Com. App.) 287 S. W. 902, and Tex. & N. O. Ry. Co. v. Harrington et al. (Tex. Com. App.) 235 S. W. 188, and authorities there cited. The court should, in submitting special issues, confine his instructions to such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on the issues presented.

We do not believe that the requested charge violated either of these rules, and we think the Court of Civil Appeals erred in so holding. The requested charge was not a general charge, and does not invade the province of the jury by telling them how to answer the issues submitted but merely explains the term used by the court, "more than ordinarily dangerous as a nighttime crossing."

We are further of the opinion that the requested charge correctly explains and defines "more than ordinarily dangerous as a nighttime crossing." In the case of M., K. & T. Ry. Co....