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

• Decision Date: 26 June 1897
• Citation: 41 S.W. 875
• Court: Texas Court of Appeals
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. TONAHILL.

41 S.W. 875

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

Court of Civil Appeals of Texas.

June 26, 1897.

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

Suit for personal injuries by Ben Tonahill, a minor, against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff. Defendant appeals. Reversed.

T. S. Miller and Stanley, Spoonts & Thompson, for appellant. McKinnon & Carlton, for appellee.

RAINEY, J.

Ben Tonahill, by next friend, filed his suit in the district court of Hill county, against the Missouri, Kansas & Texas Railway Company of Texas, in which he alleged that while living at Geneva, a station on the line of the defendant railway company, he received injuries resulting in the loss of a leg, caused by one of the cars of the defendant company running over same. He alleged at the time that he was about 11 years of age, of immature judgment and discretion, and that, while he was standing on the platform of the depot at said town, a freight train belonging to defendant was in the act of leaving said depot, going south, and that one of the agents and employés of the company on said train, seeing him, invited him to get upon said train, and he, not knowing that his action would be attended with danger, attempted to get upon same, and got hold of a fastening on one of the cars, but, his hold being infirm, he was shaken loose, and fell in front of a moving car, causing the loss of his leg, as aforesaid. He alleged that, on account of his tender years, it was the duty of the company's agents and employés to warn him not to approach or attempt to board its train of cars, and not to permit him to approach or attempt to board its train and that the company, its agents and servants, seeing him and knowing of his danger, failed and refused to warn him not to approach or attempt to get on said train, and negligently failed and refused not to permit plaintiff to approach or attempt to get on said train of cars, but negligently allowed and encouraged plaintiff to approach and attempt to board said train, thus directly causing the accident alleged. The defendant answered by general denial and special answer to the effect that, if plaintiff was injured while attempting to get on the train, the same was a freight train, and that no one had authority to invite him on same; that at said time plaintiff was familiar with the movement of trains, and knew of the danger connected with same; and that he, in a reckless manner, attempted to board same while in motion, and, being fully aware of the danger, he attempted to get on said train, without any warning to the persons operating the same; and that this negligence directly caused and contributed to the accident. A trial resulted in a judgment in favor of plaintiff below for the sum of $6,000. Motion for rehearing having been overruled, appellant perfected appeal to this court. The plaintiff introduced evidence tending to establish the allegations of his petition, while the evidence of the defendant tended to show that the accident was not caused through the negligence of its servants. The evidence fully established the fact that plaintiff's attempt to get on the moving train was the cause of his injuries.

Appellant complains of the following paragraph of the court's charge, to wit: "In this connection you are further instructed that even though you should, under the instructions given herein, find that the agents and employés of the defendant were negligent, still if you believe from the evidence that the plaintiff was also negligent, and that his negligence contributed so proximately and directly to the production of his injuries that but for it he would not have been hurt, you will find for the defendant, unless you believe from the evidence that plaintiff was at the time a youth of immature judgment and discretion, and that, on account of such immature judgment and discretion, he was unable to understand the nature and extent of the peril to which he was exposed, in which event, in order to prevent a recovery by him on the ground of contributory negligence, you must believe from the evidence that he failed to exercise that degree of care that persons of his age and immaturity of judgment and discretion would ordinarily use under like circumstances." The contention of appellant is that the evidence did not raise the question of proximate cause of the injury, and it was error for the court to instruct the jury upon that point, and said instruction tended to mislead and confuse the jury. Under the holdings of our supreme court in the cases of Railway Co. v. Rowland, 38 S. W. 756, and Railway Co. v. McCoy, Id. 36, we are of opinion that said charge was error, and should not have been given. The appellant requested a charge similar to this, which was refused by the court. Having requested a similar charge would prevent a reversal of the judgment on this ground; but, as the judgment will have to be reversed upon other grounds, we deem it best to call attention to this error in the charge to prevent a repetition thereof on another trial.

On the measure of damages, the court's charge to the jury is as follows: "If,...