Southwestern Telegraph & Telephone Co. v. Newman

• Decision Date: 04 March 1896
• Citation: 34 S.W. 661
• Parties: SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. NEWMAN.
• Court: Texas Court of Appeals

34 S.W. 661

SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. NEWMAN.

Court of Civil Appeals of Texas.

March 4, 1896.

Appeal from district court, Travis county; R. E. Brooks, Judge.

Action by G. H. Newman against the Southwestern Telegraph & Telephone Company for injuries caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Reversed.

A. H. Graham, for appellant. Sidon Harris, for appellee.

KEY, J.

The court gave the following definition of "negligence," which is assigned as error: "Negligence is the doing of that which an ordinarily careful and prudent person would not have done under the circumstances, or the failure to do that which such a person would not have done under like circumstances." The use of the adverb "not" in the last clause of this definition makes said clause mean just the reverse of the law. The trained legal mind may have no difficulty in reaching the conclusion that this was a clerical error committed in the hurry of a jury trial, but we cannot say that the mind of a layman would necessarily reach the same conclusion. The jury receive the law from the court, and no doubt sometimes find it conflicting with their own preconceived notions. Nevertheless, if they properly discharge their duties, they accept the court's charge as the law of the case. It is therefore important that the charge should state the law with clearness, and this is particularly true in defining legal terms, concerning which jurors are not expected to have any special or technical knowledge. We think the charge in question was at least calculated to confuse and mislead the jury, and must therefore hold it to be reversible error. In another part of the charge the word "plaintiff" was used where, doubtless, "defendant" was intended. This was perhaps corrected by other portions of the charge, and, if not, it is not likely to occur again. The other criticisms of the charge are, in the main, not regarded as tenable. The tenth paragraph, which is especially complained of, carefully guarded the rights of appellant. The plaintiff assumed the ordinary risks incident to the service in which he was engaged, and therefore the court very properly made his right to recover depend upon the existence of such negligence by appellant's alleged vice principal as would involve the plaintiff in an extra hazard not contemplated at the time of his employment, and not incident to the service he had agreed to perform.

The court charged the jury, among other...