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

• Decision Date: 28 February 1906
• Citation: 93 S.W. 481
• Parties: SAN ANTONIO & A. P. RY. CO. v. DICKSON.
• Court: Texas Court of Appeals

Page 481

93 S.W. 481

SAN ANTONIO & A. P. RY. CO. v. DICKSON.

Court of Civil Appeals of Texas.

February 28, 1906.

Rehearing Denied April 4, 1906.

Appeal from District Court, Lee County; Ed. R. Sinks, Judge.

Action by James W. Dickson against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Q. M. Watson, J. F. Wolters, and J. T. Duncan, for appellant. Rogan & Simmons, for appellee.

EIDSON, J.

This is a suit brought in the court below by the appellee against the appellant for damages caused by the alleged negligence of the appellant in the construction of its roadbed and stock gap where its road crosses a stream known as the "Middle Yegua." The trial before the court and jury resulted in a verdict and judgment in favor of appellee for $750 as damages to his land, and $100 as damages to his crop.

Appellant's first assignment of error complains of the refusal by the court below to give to the jury its special charge No. 2, which is a peremptory instruction to the jury to find in favor of appellant upon the ground that there is no evidence tending to prove the allegations of negligence contained in the petition of appellee. We do not think there was any error in this action of the court below. The negligence charged in the petition is, in substance, that appellant, in the construction of its road and roadbed across the valley and channel of the Middle Yegua, negligently failed to construct or leave open the necessary culverts and sluices required by the natural lay of the land for its drainage and to maintain same, and that in the construction of its stock gap in said embankment and roadbed it negligently constructed same so as to weaken said embankment to such an extent that it gave way and permitted the water to flow upon appellee's land, and that appellant had negligently failed and refused to repair such break or opening in its said embankment, and that the injuries to appellee's land and crops were the direct and proximate result of such acts of negligence. While there was a conflict in the testimony upon the issues raised by the allegations of appellee's petition, in our opinion it clearly appears from the evidence embraced in the record that there was ample testimony to justify the court below in submitting the case to the jury for their determination.

Appellant's second assignment of error complains of the refusal of the court below to give to the jury its special charge No. 3, which is as follows: "If you believe from the evidence that the defendant was negligent in the construction of the stock gap in question, still, if you believe from the evidence that, when the stock gap was constructed, the defendant could not have reasonably foreseen that the injury complained of by plaintiff would have occurred, then you will find a verdict for the defendant." As above stated, the negligence in constructing the stock gap is only one act in a series of acts of negligence charged against appellant; and this charge ignores appellant's liability and appellee's rights in the event the other acts of negligence charged are proven, and appellee's damages shown to have resulted from them. And, besides, in so far as this requested charge embodied a correct principle of law as applied to any facts proven in this case, the same was covered by the general charge of the court. Railway Co. v. Pomeroy, 67 Tex. 501, 502, 3 S. W. 722; Railway Co. v. Holliday, 65 Tex. 519; Railway Co. v. Whitaker, 82 S. W. 1051, 11 Tex. Ct. Rep. 249; Railway Co. v. Gurley, 83 S. W. 842, 11 Tex. Ct. Rep. 361. There was no error in the refusal of the court below to...