St. Louis Southwestern Ry. Co. of Texas v. Cambron

• Decision Date: 27 October 1910
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. CAMBRON.
• Court: Texas Court of Appeals

131 S.W. 1130

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. CAMBRON.

Court of Civil Appeals of Texas.

October 27, 1910.

Rehearing Denied November 24, 1910.

Appeal from District Court, Tarrant County; W. T. Simmons, Judge.

Action by T. A. Cambron against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

E. B. Perkins, D. Upthegrove, and Spoonts, Thompson & Barwise, for appellant. I. T. Valentine and McLean & Carlock, for appellee.

WILLSON, C. J.

The appeal is from a judgment for the sum of $3,500 against appellant and in favor of appellee, on account of personal injuries he alleged he had suffered as the result of negligence on the part of employés of appellant in the operation by them of one of its locomotive engines as same approached and crossed a public street within the limits of the city of Ft. Worth. Traveling in a buggy drawn by a horse along said public street, appellee crossed over appellant's track, from west to east, as one of appellant's trains approached the crossing from the north. His horse became frightened, and on account, it seems, of the breaking of the bit of his bridle, became unmanageable. To save himself from injury by the running away of the horse, appellee jumped from the buggy, and so received the injuries of which he complained, consisting, among other things, of the breaking of his right leg and the mashing of an ankle.

On the day (to wit, May 12, 1909) the trial of the cause was commenced, appellee filed the amended petition on which the trial was had. In this petition he alleged as the grounds upon which he claimed a right to recover against appellant, that its employés in control of the engine had been negligent in the operation thereof as it approached and passed the crossing, in that they had (1) negligently caused the whistle of the engine to sound in a violent, shrill, and unnecessary manner, (2) negligently caused the engine to run at a speed of 20 miles per hour in violation of an ordinance of the city of Ft. Worth prohibiting the operation within the city's limits of locomotive engines at a rate of speed in excess of 6 miles per hour, and (3) negligently, after discovering that appellee was in a perilous situation on account of the fright of his horse, failed to refrain from continuing to so unnecessarily sound said whistle as the engine approached and passed the crossing. Insisting that the amended petition for the first time set up as grounds for the recovery sought negligence on the part of its employés in operating the engine at a rate of speed prohibited by the ordinance referred to, and negligence on their part in the operation of the engine after they had discovered appellee to be in a situation perilous to him, because of the fright of his horse and the approach towards him of the engine, appellant moved the court to continue the cause, to enable it to prepare to defend against the acts of negligence on the part of its employés so, for the first time, as it alleged, set up by appellee. The action of the court below in refusing to sustain appellant's said motion and in forcing it to then go to trial is assigned as error. An inspection of the record has satisfied us that the assignment should be overruled. While it is not the only one which might be advanced, a sufficient reason for holding that the trial court did not err in overruling the motion lies in the fact that the acts of negligence in question were set up in the amended petition filed October 12, 1908. It is true they were not set up with the particularity they were alleged in the amended petition filed on the day the trial began, and which superseded said amendment of October 12, 1908. But the allegations in the latter amendment were sufficient, we think, to entitle appellee to offer evidence to prove such acts of negligence, and therefore sufficient as notice to appellant that appellee was claiming a liability against it on account thereof. It therefore was not in a position to claim to be surprised on account of the allegations in the last amended petition.

In the fifth paragraph of his charge the court instructed the jury to find for appellee, if they believed he had not himself been guilty of negligence in particulars specified, proximately contributing to cause the injury he complained of, and did believe that appellant's train as it approached the crossing was running at a rate of speed in excess of six miles per hour, and that as a proximate result of such speed of appellant's train appellee's horse became frightened and unmanageable, "and that on account thereof the plaintiff was caused to jump out and sustain injuries." Appellant's contention in its brief, that there was no testimony tending to show that the train as it approached and passed the crossing was moving at a rate of speed in excess of six miles per hour, and that therefore the instruction was erroneous, is not supported by the record. The witness McCauley, a postal clerk on the train, testified that the train was moving 15, 16, or 17 miles per hour as it approached and passed the crossing. The further contention made in appellant's brief that the portion of the charge referred to was erroneous because it authorized the jury to find against appellant if they believed that appellee's horse became frightened and unmanageable as a result alone of seeing the train moving at an unlawful rate of speed, we think is based upon a construction given the instruction not warranted by its language. It is not necessary to determine whether such an instruction as appellant construes the one given to the jury to be would be erroneous or not. It is enough now to say that the court did not tell the jury to find in appellee's favor, if they believed his horse as a result alone of seeing the train moving at a rate of speed in excess of six miles per hour became frightened and unmanageable. What he did tell them was to find for appellee if they believed the train was being operated at a speed in excess of six miles per hour, and that his horse "was, as a proximate result of said speed, if any, of said train, caused to become frightened and unmanageable," etc. The jury may have believed that a train moving at the rate of 15 miles an hour made greater or a different character of noise from that made by a train...