St. Louis S. W. Ry. Co. of Texas v. Brown

• Decision Date: 14 June 1902
• Citation: 69 S.W. 1010
• Parties: ST. LOUIS S. W. RY. CO. OF TEXAS v. BROWN.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

69 S.W. 1010

ST. LOUIS S. W. RY. CO. OF TEXAS v. BROWN.¹

Court of Civil Appeals of Texas.

June 14, 1902.

Appeal from district court, Angelina county; Tom C. Davis, Judge.

Action by Rafe Brown against the St. Louis Southwestern Railroad Company of Texas. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

E. B. Perkins and Marsh, McIlwaine & Fitzgerald, for appellant. E. J. Mantooth, Dixon F. Abney, and M. M. Feagin, for appellee.

GILL, J.

Rafe Brown brought this suit against appellant to recover damages for personal injuries alleged to have been sustained by him through the negligence of appellant. A jury trial resulted in a verdict and judgment for plaintiff for $750, from which the railway company has appealed.

The facts, briefly stated, are as follows: The plaintiff was in the employ of W. A. Abney as drayman, and he and others were engaged on the occasion of the accident in unloading a car of merchandise, which had been placed on one of the side tracks of appellant in the town of Lufkin to be unloaded. Plaintiff and three others were in the car, and the team which drew the vehicle on which the merchandise was to be loaded was hitched to the side of the car. The vehicle had been placed close to the door in the side of the car, and the plaintiff had gone to the door of the car for the purpose of putting a sack of oats on the wagon, when defendant's train was backed on the side track, striking violently against the car. As a result of the collision, the car was suddenly moved 40 or 50 feet, one of the inmates of the car was thrown from his feet to the floor, another fell to the ground from one of the doors of the car, and plaintiff was thrown to the wagon and thence to the ground, sustaining injuries, the extent of which was the main question in the case. The team broke loose from the car, and ran some distance before it was stopped. The car was being unloaded with the knowledge and consent of the agents of the railway company, and no question is made as to the right of the plaintiff to be in the car at the time of the accident. The defendant pleaded as a special defense that plaintiff was guilty of contributory negligence in failing to look out, and see the approaching train, which had been switching back and forth on the main track some time before the accident.

Under the first assignment defendant complains of the court's definition of "ordinary care," which is as follows: "`Ordinary care and caution,' as used in this charge, is that degree of care and caution that a person of ordinary prudence is accustomed to use under like or similar circumstances." Courts are not required to use the exact language of the books in defining such terms to the jury, though it would be wiser and safer to follow established definitions. We think, however, there can be no valid objection to the definition given by the court. There can be no practical difference between what a person of ordinary prudence would ordinarily do, or usually do, and what such person is accustomed to do under similar circumstances. An accurate definition was also given at the request of defendant.

Under the second assignment the portion of the charge is assailed wherein the jury are instructed that, if plaintiff failed to use such care and caution as a prudent and cautious person would have used under the same circumstances, he cannot recover. The complaint is that the court erred in failing to use the word "ordinarily" before the words "prudent and cautious." The error is clearly against the plaintiff, and is one of which appellant cannot be heard to complain.

In another portion of the charge, addressed to the same issue, the court used the language "reasonably prudent person," instead of "ordinarily prudent person," and this is also objected to. We think the objection hypercritical. The words have not infrequently been used interchangeably, and the use of the expression "reasonably prudent person" has been approved. Railroad Co. v. Watkins (Tex. Sup.) 29 S. W. 232. The cases of Railroad Co. v. Rice (Tex. Civ. App.) 29 S. W. 525, Railway Co. v. Finley, 79 Tex. 87, 15 S. W. 266, and City of Austin v. Ritz, 72 Tex. 402, 9 S. W. 884, are not in conflict with our conclusion on this question.

By the eighth assignment appellant assails as error the refusal of a requested charge to the effect that, if the conductor in charge of appellant's train cried out a warning to those in the car as the train approached the car, and that such act on his part amounted to the exercise of ordinary care for the safety of those in the car, then to find for defendant. We are of opinion the evidence is insufficient to present such an issue. It is true the conductor testified he cried out to those in the car as the train was approaching. So did some of the bystanders, but it is undisputed that the warning was not heard, as must have been apparent at the time. The car was a...