San Antonio & A. P. Ry. Co. v. Votaw

• Decision Date: 04 May 1904
• Citation: 81 S.W. 130
• Parties: SAN ANTONIO & A. P. RY. CO. v. VOTAW.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 130

81 S.W. 130

SAN ANTONIO & A. P. RY. CO. v. VOTAW.^*

Court of Civil Appeals of Texas.

May 4, 1904.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by Gus W. Votaw against the San Antonio & Aransas Pass Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Houston Bros. and R. J. Boyle, for appellant. John Sehorn, for appellee.

NEILL, J.

This is an action for damages, brought by appellee against appellant for personal injuries inflicted by the negligence of the latter. The appeal is from a judgment for $12,000 in favor of plaintiff.

As several of the assignments of error are, in the light of the pleadings, aimed at the charge, we will first state the substance of the pleadings pertinent to such assignments, and, after our conclusions of fact, then quote those paragraphs of the charge complained of by them.

The plaintiff alleged as his cause of action that on the 5th day of December, 1900, while traveling along South Flores street, in the city of San Antonio, he endeavored to cross defendant's railroad track where it intersects the street, and that just as he drove upon the track a car collided with his vehicle and horse, in consequence of which he was seriously and permanently injured; that such collision and the consequent injuries were directly caused by defendant's negligence, in that the car was negligently pushed by an engine across the street without a lookout or light, no bell was rung nor whistle blown by the engine pushing the car, nor any warning or signal of any kind given of the approaching car; that Flores street was one of the principal thoroughfares of the city, and that by reason thereof defendant, as it was its duty, maintained gates there across, at, or near the point of intersection of the street with its railroad track for the protection of the traveling public using said street at said crossing; that at the time plaintiff attempted to cross the railroad track such gates were up, and he was thereby misled into believing that no cars, engines, or trains were then about to approach the crossing, and, thus beguiled, he had no knowledge or notice that any trains, cars, or engines were then there or about to cross the street along the railroad track; and that defendant was negligent in thus allowing the car to cross the street. The defendant, after answering by a general denial, pleaded specially: "That if plaintiff was injured by a collision with one of defendant's cars, such collision was brought about by the want of ordinary care on the part of plaintiff, and that plaintiff was himself guilty of negligence in heedlessly and without due and ordinary care driving upon defendant's track immediately in front of a moving engine, and in such close proximity thereto that it was impossible to stop said car and engine in time to prevent said collision; and that such want of care on the part of plaintiff caused and contributed to cause said collision and the consequence thereof."

The evidence is reasonably sufficient to warrant these conclusions: (1) That the defendant was guilty of negligence as charged in plaintiff's petition; (2) that such negligence was the proximate cause of plaintiff's injuries; (3) that plaintiff was not guilty of any such negligence as in any way proximately contributed to his injuries; and (4) that by reason of such negligence of defendant plaintiff sustained serious and permanent physical injuries, from which he has suffered, and will continue to suffer, great mental and physical pain, and his ability to labor and earn money greatly impaired and diminished, to his damages in the sum of money found by the jury.

Conclusions of Law.

These are the paragraphs of the charge against which several of the assignments of error are directed:

"(1) If you believe from the evidence that on or about the 5th day of December, 1900, plaintiff was riding in his buggy, drawn by his horse, and endeavored to cross the railroad track of the defendant at the point where the track intersects South Flores street, and that plaintiff drove upon the track, and as he did so a car of the defendant was pushed over the railroad track by the engine, and collided with plaintiff's vehicle and horse, and in consequence thereof plaintiff was injured, as claimed by plaintiff in his petition; and if you further believe from the evidence that no warning was given of the car's approach by either ringing a bell or blowing a whistle, or that the car had no lookout upon the same, and had no light upon it, and that the defendant was negligent in causing the car to be so moved over the railroad track, if you find it was so moved, and that this negligence, if any, was the direct cause of the injuries, if any, to plaintiff, and that plaintiff was not guilty of any negligence which contributed to his injuries, if any—then your verdict must be for the plaintiff.

"(2) Or if you believe from the evidence that on or about the 5th day of December, 1900, plaintiff was riding in his buggy, drawn by his horse, and endeavored to cross the railroad track of the defendant at the point where the track intersects South Flores street, and that plaintiff drove upon the track, and as he did so a car of the defendant was pushed over the track by the engine, and collided with plaintiff's vehicle and his horse, in consequence of which plaintiff was injured, as claimed by plaintiff in his petition; and if you further believe from the evidence that it was the duty of the defendant to maintain gates where its tracks intersect South Flores street, and that the defendant did maintain gates thereat; and if you further believe from the evidence that at the time plaintiff endeavored to cross the track, and if he did so endeavor to cross the track, the aforesaid gates were up, and that this indicated that no cars or engines were about to cross said South Flores street over the railroad track; and you further believe from the facts and circumstances before you that the defendant was guilty of negligence in allowing said gates to be up when a car was crossing the track over South Flores street, if you so find the facts, and that such negligence, if any, was the direct cause of the injuries, if any, to plaintiff, and that plaintiff was not guilty of any negligence which contributed to his injuries, if any—then, in this event, I also charge you your verdict must be for the plaintiff.

"(3) If, however, you find that plaintiff drove upon defendant's track immediately in front of a moving car and engine and in such close proximity thereto that it was impossible to stop said car and engine in time to prevent a collision, and that in driving upon said track immediately in front of a moving car and engine, if you find he did so drive upon said track, plaintiff was guilty of negligence, and that such negligence, if any, either caused or contributed to his injury, if any, then plaintiff cannot recover and you should so find by your verdict."

(Note. The charge, as first written by the trial judge, included the words erased, but when read and delivered to the jury the erasures were made, and the words erased omitted.)

The first paragraph is assigned as error, and the following propositions are asserted and insisted upon under the assignment:

"(1) The charge of the court should conform to the issues made by the pleadings and evidence in the case, and should not withdraw from the jury a material issue under the pleadings and evidence. In confining the jury to the inquiry as to whether or not a warning was given of the car's approach by either ringing the bell or blowing of the whistle, the court withdrew from the consideration of the jury the issue as to whether or not any other warning was given, and the charge complained of is therefore erroneous.

"(2) It is the duty of the trial court to submit the issues made by the pleadings and evidence in the case, and the charge complained of is erroneous in failing to submit the issue as to whether or not appellant gave any warning of the car's approach to the crossing other than the ringing of the bell or the blowing of the whistle.

"(3) It is reversible error for a trial court in its charge to the jury to assume the existence of a material fact put in issue by the evidence in the case. The charge complained of, in confining the inquiry to the alleged negligence of defendant in failing to ring the bell or blow the whistle, assumes the fact to be that no other warning was given, when such fact was in issue under the pleadings and evidence in the case, and the charge is therefore erroneous.

"(4) When it appears from the evidence in the case that an alleged act of negligence could not have been the proximate cause of plaintiff's injury, it is error for the trial court to submit such issue to the jury. The evidence in this case shows that the alleged failure of appellant to have a lookout or lights upon its car could not have been the proximate cause of appellee's injury, and the submission of such issues constitutes error."

Each proposition will be considered in the order presented.

1. We do not think the charge excludes any issue raised by the pleadings upon which a verdict could have been found for the defendant. The allegation, "nor was any warning given, or signal of any kind whatever given, of the approach of the said car," appearing in the petition in the same sentence and just after the clause, "no bell was rung nor whistle blown by the engine pushing the car," was of negligence made against the defendant, on which, if the evidence were sufficient to warrant its submission, a verdict might have been returned in favor of plaintiff, even if the jury had found against him upon the other allegations of negligence; i. e., if the allegations constituted such a pleading of negligence, in view of other more specific averments of negligence contained in the petition, as would authorize its submission to the jury. To illustrate: Suppose the...