St. Louis Southwestern Ry. Co. v. Smith

• Decision Date: 14 November 1903
• Citation: 77 S.W. 28
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. SMITH.
• Court: Texas Court of Appeals

77 S.W. 28

ST. LOUIS SOUTHWESTERN RY. CO. v.SMITH.

Court of Civil Appeals of Texas.

November 14, 1903.

Appeal from Taylor County Court; D. G. Hill, Judge.

Action by T. T. Smith against the St. Louis Southwestern Railway Company and another.From a judgment for plaintiff, the above named defendant appeals.Reversed.

J. M. Wagstaff, for appellant.Bowyer & Tillett, for appellee.

SPEER, J.

Upon the trial of this cause, which was an action to recover damages for injuries to a car of horses occasioned by the negligence of appellant, the court defined negligence to be "the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done."To this charge the first error is assigned.While we are not disposed to sanction the use of the words "a reasonable and prudent person," rather than the often approved expression "a reasonably prudent person," in defining negligence, yet, in view of some of the decisions, we are not prepared to hold the same in this instance to be reversible error, especially when the entire definition is read, and the failure of appellant to request a more specific instruction is considered.SeeHouston & T. Ry. Co. v. Oram, 49 Tex. 341;Fort Worth & D. C. Ry. Co. v. Partin(Civ. App.)76 S. W. 236, 8 Tex. Ct. Rep. 266;Texas & P. Ry. Co. v. Curlin(Tex. Civ. App.)36 S. W. 1003;San Antonio & A. P. Ry. Co. v. Safford(Tex. Civ. App.)48 S. W. 1105;Texas & N. O. Ry. Co. v. Black(Tex. Civ. App.)44 S. W. 673.If the charge was not as clear and explicit as appellant desired, it should have requested a better one.

The judgment must, however, be reversed for errors appearing in other portions of the charge.Upon the effect to be given by the jury to a certain written claim for damages presented by appellee, the court charged as follows: "You are further charged that if you should find from the evidence that the claim put in to the defendants for damages was in the nature of a compromise and settlement of his claim for damages, and not as a true and correct amount of damages for the damages sustained by reason of said shipment, then the plaintiff is not bound by said claim as amount of his damages, and you will not consider it for that purpose."Appellee caused to be made a detailed statement of the injuries inflicted upon his stock, and the amount of his damages in consequence, and presented the same to the Texas & Pacific Railway Company, one of the defendants in this suit.This was done at a time, it seems, when there had been no negotiations pending between the parties looking to a settlement, and the amount then claimed—$95—purported to be the entire amount of his damages.Although the appellee then and at the time of trial denominated the transaction an offer to compromise, it does not appear to have been such.As said in an Indiana case: "A party cannot render an admission...