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

• Decision Date: 02 February 1899
• Citation: 49 S.W. 679
• Parties: SAN ANTONIO & A. P. RY. CO. v. STOLLEIS et al.
• Court: Texas Court of Appeals

49 S.W. 679

SAN ANTONIO & A. P. RY. CO. v. STOLLEIS et al.

Court of Civil Appeals of Texas.

February 2, 1899.

Appeal from district court, De Witt county; James C. Wilson, Judge.

Action by Mrs. Louise Stolleis and others against the San Antonio & Aransas Pass Railway Company. There was a judgment for plaintiffs, and defendant appeals. Reversed.

Proctors, for appellant. Price, Green & Green and John H. Bailey, for appellees.

PLEASANTS, J.

On the 12th of August, 1896, Adolph Stolleis, while returning from Yoakum, De Witt county, to his home, driving a wagon drawn by two horses along a public road, was, at the crossing of said road over the appellant's railway, run over by a train of passenger cars running on schedule time from San Antonio to the city of Houston, and killed, as were his team of horses, and his wagon and harness were entirely destroyed; and to recover damages for the loss sustained by them in his death, and for the value of the wagon, team, and harness, the appellees, who are the widow and the children of the deceased, brought this suit against appellant; and, upon trial of the cause, a verdict and judgment were rendered for the plaintiffs for the sum of $4,482.541/9, and, a new trial being denied it, the defendant appealed to this court.

The petition charged the defendant with negligence in two particulars only: First, a failure to blow the steam whistle and to ring the bell in the manner required by the statute; and, second, in permitting the condition of its roadbed and right of way to be unsafe for the traveling public, at their intersection with the public road in which deceased was traveling, in this: "That said public road for a great distance approaching said track, in the direction of which said Adolph Stolleis was traveling, is greatly obstructed to view, and so constructed, especially on defendant's roadbed and right of way, that one approaching like said Stolleis cannot see a train coming from the direction of Yorktown, and crossing said public road; that said public road narrows approaching said track, and on the side of said roadbed and right of way in the direction from which the said Stolleis was coming a view of a train is wholly obstructed by embankments, about ten or twelve feet high, from one traveling like the said Stolleis was, and, on account of the improper condition of said roadbed and right of way, he was unable to see, and did not see, the approaching train; and the condition of said roadbed and right of way, at the point of said collision and the place above described, was known to defendant, its agents and servants, or, if not known, could have been known by the use of ordinary diligence and care. And defendant's having permitted its said roadbed and right of way to be and remain in an improper and dangerous condition at said time and place, and under the circumstances above set out, was negligence on the part of defendant, and materially contributed to the injury and death of said Stolleis, and the destruction of his property."

The appellant, in the brief of its counsel, submits for our consideration and decision several assignments of error, and among them is one complaining of the court in not submitting the case to the jury on special issues prepared by counsel for defendant, with instructions to the jury to return a special verdict in response to said issues, and, after refusing to submit the case as requested, in directing the jury to return a general verdict. This case will be reversed and remanded for other errors assigned, and this court, therefore, does not consider it is incumbent upon it to construe the act of the legislature (article 1333, Rev. St. 1895) upon which appellant bases its claim of right to have the cause submitted to the jury upon special issues, and a special verdict rendered by the jury. But, if it be conceded that the act makes it the duty of the court to submit a case to the jury upon special issues, if requested to do so by a party to the suit, we are of the opinion that the court did not err in refusing to instruct the jury to return a special verdict upon the issues prepared by appellant, and which it requested might be submitted to the jury.

The second assignment of error complains of the court in permitting the appellees, over the objections of the appellant, to introduce evidence that there was a fence upon the embankment at the place at which deceased was killed; the objection being that the evidence was irrelevant, and was not authorized by the allegations of the petition. The court is of the opinion that there was not error in admitting the evidence.

The fourth, fifth, sixth, and thirteenth assignments of error are submitted in a group. The first...