Price v. St. Louis Southwestern Ry. Co. of Texas

• Decision Date: 15 February 1905
• Citation: 85 S.W. 858
• Parties: PRICE v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

85 S.W. 858

PRICE v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.^*

Court of Civil Appeals of Texas.

February 15, 1905.

Error from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by C. H. Price against the St. Louis Southwestern Railway Company of Texas. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

J. R. Norton and James Routledge, for plaintiff in error. E. B. Perkins, Clark & Bolinger, T. M. West, and C. A. Davies, for defendant in error.

JAMES, C. J.

The action was brought by plaintiff in error for damages for personal injury. The verdict was in favor of the railway company.

The general charge to the jury contained this paragraph: "If you believe from the evidence that the defendant was not guilty of negligence in the maintenance of its track and roadbed at the place of said accident in any manner whatever, and if you believe from the evidence that said track of defendant at the place of the accident was not in a proper and safe condition of repair, and that such condition was caused solely by unprecedented, heavy, and continued rainfalls, which no human foresight could guard against, and that same was an act of God, * * * or that defendant was not guilty of negligence, then you will find for the defendant." The following special charge, asked by defendant, was also given: "The jury are instructed that if they believe from the testimony that the derailment of the defendant's cars at the time and place as alleged by plaintiff was caused by any defective condition of defendant's track or roadbed, then you will consider whether or not such defective or unsafe condition of defendant's track or roadbed was caused by the negligence of this defendant; and in this connection you are charged that if you believe such defective condition of defendant's track or roadbed, if any, was caused by an unprecedented and continuous spell of rainy weather, and such a condition of the weather that the defendant, by the exercise of ordinary care, was unable to guard against or foresee in the construction and maintenance of its said track, then, and in this event, you are instructed that the plaintiff would not be entitled to recover herein in any sum, regardless of the question and further issue in the case as to whether or not injured."

The first assignment of error is that the court erred in giving said special charge. Appellant's propositions are: (1) That it was repetition of the said paragraph of the main charge, and thereby the court unduly emphasized a certain issue, and gave same undue prominence. (2) That the evidence did not show or tend to show that the accident was caused by an act of God. (3) That the facts alleged in defendant's answer did not constitute an act of God; hence the giving of the special charge was error. It appears that plaintiff's counsel asked a charge to be given containing six paragraphs, evidently designed to cover the submission of the entire cause. There is nothing to indicate that this charge was requested after the main charge had been read to the jury; on the contrary, the indications are that it was presented to the court previously. Paragraph 3 of this requested charge is the same as paragraph 3 of the main charge. Appellant's counsel, having asked the charge to be given, cannot complain of its being given, and cannot be heard to assign error as to what it contained or submitted. Under this assignment the only matter which appellant can be heard on is whether or not there was error in respect to repetition. Each party asked instructions which were explanatory of what was contained in said third paragraph of the court's charge. It is evident that both were not satisfied with its generality, and wanted something more specific. Both requests were given, and now, because the court gave the one asked by defendant, plaintiff says that the court gave the particular issue too much prominence. The court gave plaintiff's charge which told the jury to find against defendant on a certain theory, and committed thereby no error in the way of repetition; nor did it do so by giving one asked by defendant on like theory, authorizing them to find for defendant. The assignment does not raise any question as to the intrinsic correctness of the charge complained of.

The second assignment of error is eliminated by an agreement of counsel.

The third assignment is as follows: "The court erred in giving defendant's special charge No. 3 on the question of assumed risk, because said issue and charge were not supported by the pleadings and evidence in this case, because it is not shown that plaintiff had any knowledge of any defect in the track, roadbed, railroad cars, or equipment of the same, and the evidence showed conclusively that he had not any knowledge of any defect, and that he could not have had any knowledge of any defect of any kind whatever, and had only been over the piece of road once before, and that was during the night-time." De...