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

• Decision Date: 18 December 1901
• Citation: 66 S.W. 246
• Parties: SAN ANTONIO & A. P. RY. CO. v. CONNELL.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

66 S.W. 246

SAN ANTONIO & A. P. RY. CO. v. CONNELL.¹

Court of Civil Appeals of Texas.

December 18, 1901.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Action by Sam Connell against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiff, defendant appeals. Modified.

Houston Bros. and R. J. Boyle, for appellant. Carter & Lewis, for appellee.

FLY, J.

Appellee instituted this suit to recover damages accruing by the negligence of appellant in failing to send a flagman from a certain train standing on the track at a water station at Buckner Creek, and warn appellee by signals, so as to prevent the collision between the engine on which appellee was engineer and the rear end of the standing train. The trial resulted in a verdict for $22,000, of which $4,000, in obedience to a requirement of the court, was remitted by appellee, and judgment was accordingly entered for $18,000. We conclude that the jury was justified by the facts in finding that the injury occurred through the negligence of appellant's employés, in not properly warning the approaching train on which appellee was engineer that another train was standing on the track, and that appellee was not guilty of contributory negligence. The facts are more fully set forth in connection with the consideration of assignments of error questioning their sufficiency.

The first, second, and third assignments complain of the charge of the court because it permitted the jury to find whether a violation of rules was negligence; the contention being that the court should have instructed the jury that a failure to obey rules promulgated by the railroad company was negligence per se. The instructions complained of are as follows: "(2) You are further charged that if you find from the testimony that the train which was standing at Buckner Creek sent out a flagman, and that such flagman signaled the train on which plaintiff was engineer in time for the plaintiff to have stopped the train on which he was engineer and prevented the collision, and that the plaintiff failed to discover such signal, if any, or failed to obey it if he did discover it, and that such failure on the plaintiff's part was negligence, then the plaintiff cannot recover. (3) You are further charged that if you find from the testimony that it was plaintiff's duty to approach the standpipe at Buckner Creek with his train under full control, and you further find that he failed to have his said train under full control in approaching said Buckner Creek, and that such failure was negligence, and that such negligence contributed to the collision, then the plaintiff cannot recover, and you must so find. (3½) You are further charged that if you find from the testimony that defendant company had at the time and prior to the departure of plaintiff from Yoakum a notice posted in the bulletin book in its office at Yoakum, or on the clip in the yard of said company at said place, directing all enginemen to protect their trains at the Buckner Creek water tank or standpipe, and you further find that it was plaintiff's duty to examine said bulletin book and clip, before leaving with his train, and you further find that plaintiff failed to observe said notice so posted, if you find it was so posted, and that such failure, if any, was negligence, and that such negligence, if any, either caused or contributed to his injury, then plaintiff cannot recover, and you must so find. The burden of proof is upon plaintiff to establish his case by a preponderance of the testimony." None of the cases cited by appellant sustains its contention, and we have not seen any case in which it was held that a court would be justified in telling a jury that the infraction of a rule formulated by the master was negligence per se in the servant; and, on the other hand, the converse of the proposition has been time and again held by the courts of Texas. In the leading case of Railway Co. v. Murphy, 46 Tex. 357, 26 Am. Rep. 272, it is held that except in cases where the entire facts show negligence, or where a statute declares certain acts negligence, it is error for a court to instruct a jury that a given state of facts constitute negligence. While not giving unqualified approval to all that was said in the Murphy opinion, it was said in Railway Co. v. Hill, 71 Tex. 451, 9 S. W. 351: "We have been cited to no case where it had been held competent for the court to charge upon any combination of facts as constituting negligence, save when so declared by law." In the case of Railway Co. v. Gasscamp, 69 Tex. 545, 7 S. W. 227, it was said: "According to the rule in this court, in order that an act shall be deemed negligent per se, it must have been done contrary to a statutory duty, or it must appear so opposed to the dictates of common prudence that we can say, without hesitation or doubt, that no careful person would have committed it." This has been reiterated in many cases. Railway Co. v. Lee, 70 Tex. 496, 7 S. W. 857; Campbell v. Trimble, 75 Tex. 270, 12 S. W. 863; Railway Co. v. Anderson, 76 Tex. 244, 13 S. W. 196; Calhoun v. Railway Co., 84 Tex. 226, 19 S. W. 341; Garteiser v. Railway Co., 2 Tex. Civ. App. 230, 21 S. W. 631; Railway Co. v. Long, 4 Tex. Civ. App. 497, 23 S. W. 499. Speaking of...