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

• Decision Date: 28 February 1894
• Citation: 25 S.W. 712
• Parties: SAN ANTONIO & A. P. RY. CO. v. JAZO.
• Court: Texas Court of Appeals

25 S.W. 712

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

Court of Civil Appeals of Texas.

February 28, 1894.

Appeal from district court, Wilson county; George McCormick, Judge.

Action by Simon Jazo against the San Antonio & Aransas Pass Railway Company for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

Proctor & Proctor, for appellant. Lawhon & Camp, for appellee.

FLY, J.

Suit was brought by appellee in the district court of Wilson county to recover damages arising from personal injury alleged to have resulted from the gross negligence of an engineer in the employ of appellant. Appellee, by reason of the injury, lost one of his arms. Contributory negligence on the part of appellee was pleaded by appellant, and there were general and special exceptions to the petition. The case was tried by a jury, and resulted in a verdict and judgment for appellee for $2,000.

It is urged, under the first assignment of error, that the court erred in overruling the second special exception to the second amended petition, because the facts, as pleaded by appellee, expose him to a suspicion of contributory negligence. In the case of Railway Co. v. Crowder, 63 Tex. 502, the rule as laid down by the supreme court of Massachusetts is adopted in regard to the proof in connection with injuries that is devolved upon plaintiffs. It is said: "While, however, the plaintiff is to show that he was in the exercise of due care, and that no negligence of his contributed to the injury, this may be shown by proving facts and circumstances from which it may fairly be inferred; and if all the circumstances under which an accident took place are put in evidence, and, upon an examination of them, nothing is found in the conduct of the plaintiff to which negligence can fairly be imputed, the mere absence of fault may justify the jury in finding due care on his part. But if there is only a partial disclosure of the facts, and no evidence is offered showing the conduct of the party injured, in regard to matters specially requiring care on his part, the data for such an inference are not sufficient." This case is followed in Murray v. Railway Co., 73 Tex. 2, 11 S. W. 125. In other words, the rule is, if the allegations in the petition and the proof fail to show a lack of care and prudence upon the part of the injured party, then contributory negligence must be alleged and proved by the party inflicting the injury. The allegations in the second amended petition show a prima facie case in favor of appellee. There is an allegation that the car was on the track, and appellee was on it, engaged in loading the car with brick; that the car had been placed in its position by appellant; that appellee was engaged in his legitimate business; that the injury was occasioned by the gross negligence, carelessness, and recklessness, and reckless indifference of the engineer; that the engineer knew that appellee was on the car, at work, when he struck it with the engine, but, disregarding the safety of appellee, the engineer, without any warning whatever, ran an engine and flat cars against the car on which appellee was laboring, with such violence as to throw appellee to the ground and cause his injury, to wit, the loss of an arm. These allegations do not show any contributory negligence on the part of appellee, and a judgment rendered upon the facts set forth in the petition would be sustained.

It will be seen by a reference to the allegations in the petitions, as hereinbefore indicated, that the only ground upon which appellee based a recovery was upon the injury being caused by the gross negligence of the engineer alone, and upon gross negligence of the engineer must the verdict and judgment be based. Appellee requested seven instructions, which were incorporated into, and made a part of, the charge of the court. In three of the instructions, and in the prefatory statement of the case, the appellant is held responsible for the negligence of the employes of appellant, or those operating the train. The evidence develops the fact that there was, besides the engineer, a fireman, a brakeman, and a conductor, in charge of the train, and that the engineer, at the time of the injury, was acting under, and guided by the signals of, the brakeman. Immediately following the seven instructions of appellee are given six charges requested by appellant, in which the jury are distinctly instructed that they must find that the injury was the result of the negligence of the engineer, and no other employe; and in charges written by the court, and which are given with the requested charges, this same instruction is reiterated. The latter charges are in direct conflict with the first...