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

• Decision Date: 21 March 1894
• Citation: 26 S.W. 879
• Parties: MISSOURI, K. & T. RY. CO. v. REYNOLDS.
• Court: Texas Court of Appeals

26 S.W. 879

MISSOURI, K. & T. RY. CO. v. REYNOLDS.

Court of Civil Appeals of Texas.

March 21, 1894.

Appeal from district court, Hunt county; E. W. Terhune, Judge.

Action by James Reynolds against the Missouri, Kansas & Texas Railway Company for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.

Dillard & Muse, for appellant. J. S. Sherrill and Yoakum & Looney, for appellee.

LIGHTFOOT, C. J.

Plaintiff brought this suit against the Missouri, Kansas & Texas Railway Company and the Missouri, Kansas & Texas Railway Company of Texas for personal injuries alleged to have been inflicted upon him about October 10, 1891. He alleged that, in the city of Greenville, he was driving along a public street. He came to a crossing of the railway, when the employes of the company negligently propelled an engine against his wagon, breaking it in pieces, killing his horses, and inflicting serious injuries upon himself. On June 22, 1892, the case was tried before a jury, and resulted in judgment for plaintiff for $4,000, from which the railway company appealed.

The following facts were shown: About October 10, 1891, appellee was in the city of Greenville, and attempted to cross the track of appellant, with his wagon and team, at a public crossing on one of the public streets of said city. That, before attempting to cross, he used such care as a man of ordinary prudence would have used to prevent injury; that he stopped his team, and waited for a freight train to pass, and that when he attempted to cross the switch engine was stopped near the crossing, and the street clear, and that appellant's servants in charge of its switch engine negligently ran such engine against appellee's wagon, throwing him out, killing his horses, breaking his wagon, and seriously injuring him, whereby he has suffered both physical and mental injury and loss, to the full extent of the verdict found in this case. That, at the time of such injury, appellant's servants in charge of such switch engine, saw appellee near the crossing in full time to have prevented the injury, when such engine was almost, if not quite, at a standstill, and fully under control. That an ordinance of the city of Greenville made it a penal offense to run an engine, or have it run, within the corporate limits of such city, at a greater rate of speed than six miles per hour, and that appellant's servants, at the time of such injury, were running such engine at a greater rate of speed than was allowed by such law, and failed to ring the bell or blow the whistle as they approached such crossing; and that, by reason of such negligence, appellee sustained such injury and loss. Appellee was not guilty of contributory negligence at the time of such injury.

Conclusions of Law.

1. The first assignment of error is as follows: "The court erred in refusing to grant defendant's application for a continuance." The application contains four distinct grounds, for different witnesses. The assignment is too general, and cannot be considered. City of Ft. Worth v. Johnson, 84 Tex. 137, 19 S. W. 361; Mitchell v. Mitchell, 84 Tex. 303, 19 S. W. 477; Railway Co. v. Downie, 82 Tex. 383, 17 S. W. 620; Paschal v. Owen, 77 Tex. 583, 14 S. W. 203; Cooper v. Langway 76 Tex. 121, 13 S. W. 179; Harris v. Daugherty, 74 Tex. 1, 11 S. W. 921; Bumpass v. Morrison, 70 Tex. 759, 8 S. W. 596. Even if this assignment could be considered, the appellant having failed to show the statutory diligence, or sufficient equities to entitle it to a continuance as a matter of right, it becomes questionable whether this court, in such a case, should undertake to revise the discretion of the court below.

2. The court did not err in overruling appellant's objections to the admission in evidence of the ordinance of the city of Greenville making it a penal offense to run or have run, within the corporate limits of the city, any railway engine or car at a greater rate of speed than six miles an hour.

3. The third assignment of error is not presented in compliance with the rules, in this: that it embraces in one assignment objections to the remarks of two different attorneys, as embraced in two separate bills of exceptions. But, if the assignment should be considered, the remarks of Mr. Sherrill, as presented in appellant's statement, under the instructions of the court, and under his own withdrawal, were not such as were calculated to injure appellant, and the verdict of the jury does not indicate that they were in any way prejudiced or influenced thereby.

4. Appellant objects to the third charge of the court, on the ground that the court presented to the jury the question of how the crossing appeared to appellee, instead of how it would have appeared to a man of ordinary prudence. The third charge was as follows: "A switch engine has the right to use the railway track in the yard limits, as against all obstruction; and it was the duty of plaintiff, when he approached the track, to look in each direction, and listen, to see if there was an engine approaching, and he had no right to drive upon the track unless it appeared to him he could safely cross the track before the engine would reach the crossing. When plaintiff saw the engine approaching, he was compelled to use such precautions as a prudent man would resort to under the circumstances; and if he did not do this, and drove upon the track under such circumstances as would make it reasonably apparent to an ordinarily prudent man that he would likely be injured, or that there was a reasonable probability of a collision, he would be guilty of contributory negligence, and could not recover." This charge was in appellant's favor. The question was also fully presented by the court in other portions of its charge, especially in the first special charge requested by appellant's counsel, and given by the court, as follows: "It was plaintiff's duty, on approaching the crossing, to act with the care and caution that a man of ordinary prudence would have exercised under the same circumstances; and if he failed to do so, and by reason of such failure received his injuries, you will find for defendant." The same degree of care is strongly presented in the first and third special charges asked by appellant, and given by the court; so that there can be no doubt that the jury was fully advised upon this point, and could not have been misled.

5. The fifth assignment presented is as follows: "There was no evidence in the case showing that the employes operating the engine knew that plaintiff was on the track, and saw his danger, and after this failed to use the proper precaution to protect him, and the charge submitting this issue was therefore unwarranted." The charge complained of in this assignment is as follows: "It was the duty of the employes in charge of the engine to use such reasonable care to avoid a collision as ordinary prudence would suggest, taking into consideration the character of the crossing the engine was approaching, and the employes in charge of the train could lawfully presume that plaintiff would stop his team before the engine passed, or would safely cross the track if he attempted to do so before the engine reached the crossing; and their failure to stop the engine would not be negligence, so as to render defendant liable, unless they had time to stop it and could have done so after they saw plaintiff was so near the track he could not avert the danger if the train moved on, or after they saw plaintiff was on the track, and could not get off in time to avoid a collision in case the engine passed on." Appellee had testified: "There were several men on the engine, and one or two standing on the rear part at its end. I suppose they saw me. They could plainly have seen me. The man on the rear of the engine looked like he saw me." J. E. Snuckle, the switchman of appellant testified: "The engine which hurt the plaintiff was a switch engine. The engine had on the rear a footboard, on which I was standing. The fireman and engineer were in the cab. We were going down the main line of the track, approaching the crossing, and I saw the plaintiff also approach it. When I first saw him he was about twenty feet from the crossing. We slowed up, coming nearly to a stop, at a distance of about fifteen feet from...