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

• Decision Date: 19 March 1914
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WADSACK.
• Court: Texas Court of Appeals

166 S.W. 42

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

Court of Civil Appeals of Texas. Texarkana.

March 19, 1914.

On Motion for Rehearing, April 9, 1914.

Appeal from District Court, Smith County; R. W. Simpson, Judge.

Action by John Wadsack against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

Marsh & McIlwaine, of Tyler, for appellant. Johnson & Edwards, of Tyler, for appellee

HODGES, J.

About the 4th of September, 1912, Mrs. Nancy Wadsack, the wife of the appellee in this appeal, took passage on a train of the International & Great Northern Railway Company at Arp, in Smith county, Tex., destined for Palestine, in Anderson county. At Jacksonville, a station between those points, the International & Great Northern Railway runs practically north and south. It is there crossed by the line of railway of the appellant, St. Louis Southwestern Railway Company of Texas. The crossing of the two railways is at a common grade between the depot of the International & Great Northern Railway Company and a water tank. The train in which Mrs. Wadsack was riding stopped at the water tank for the purpose of taking water after leaving the depot at Jacksonville, and the coach which she occupied stood directly over the crossing of the two railroads. While in that position one of appellant's freight trains approaching from the north ran against the coach occupied by Mrs. Wadsack, and overturned it, inflicting upon her severe personal injuries. A trial before a jury resulted in a verdict in favor of the plaintiff below for the sum of $10,000. The suit was originally against both railway companies; but before trial the plaintiff dismissed as to the International & Great Northern Railway Company, and obtained a judgment against the appellant only.

Among the acts of negligence alleged was the failure of the appellant's engineer in charge of the train which caused the injury to bring his engine to a stop before attempting to cross the track of the International & Great Northern Railway Company, in accordance with article 6564 of the Revised Civil Statutes of 1911. There is practically no dispute in the evidence as to the facts immediately attending the collision of the two trains. The engineer in charge of appellant's train testified that before he reached the crossing he knew of the presence of the train in which Mrs. Wadsack was riding; that for some distance north of the crossing the track of the appellant is on a grade sloping to the south; that as he came down that grade he tested the condition of his air brakes several times, and found them to be working satisfactorily; that just before reaching the crossing he again applied the air, but the brakes failed to hold the train, and, notwithstanding he reversed his engine, he was unable to stop his engine until after it struck and overturned the coach occupied by Mrs. Wadsack. He accounts for the failure of the brakes to work at that particular time by saying that he must have exhausted too much of the air prior to making the final application.

The first assignment of error complains of the following portion of the court's main charge: "So, if you shall find that a locomotive engine being operated by the defendant, St. Louis Southwestern Railway Company of Texas, was not brought to a full stop by the employés of defendant railway company in charge thereof before reaching the crossing of the International & Great Northern Railway Company over the St. Louis Southwestern Railway Company, and if you shall find that, as the direct and proximate result of such neglect, if any, to so stop the locomotive engine, a coach of the International & Great Northern Railway Company, in which plaintiff's wife was riding, was run into by such locomotive engine, and if you find that, as the direct and proximate result thereof, she was injured, it will be your duty to return a verdict for the plaintiff." The objection to this charge is that it is more onerous than the law requires; that it makes the appellant liable absolutely for the injury, without reference to the care which the engineer may have exercised in his efforts to stop the train. The second assignment complains of the refusal of the court to give a special charge, which is as follows: "You are charged that, unless you believe from the evidence in this case that the operatives of defendant's train failed to exercise ordinary care and caution to prevent the locomotive colliding with the train of the International & Great Northern Railway Company, upon which plaintiff's wife was a passenger, then it will be your duty to return a verdict for the defendant in this case." Without reference to the merits of these assignments, we are of opinion that in the present state of the record neither of them can be considered.

The Thirty-Third Legislature adopted some radical amendments to our practice statutes. Article 1971 of the Revised Civil Statutes was amended so as to read as follows: "The charge shall be in writing and signed by the judge; after the evidence has been concluded the charge shall be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and present objections thereto, which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived." Acts 1913, p. 113.

The transcript contains the following as the objections made to the main charge of the court:

"Objections and Exceptions to Charge of the Court.

"John Wadsack v. St. Louis Southwestern Railway Company of Texas. No. 7164.

"In the district court of Smith county, Texas, September term, 1913, comes now the defendant, St. Louis Southwestern Railway Company of Texas, by its attorneys, and excepts to the charge of the court:

"(1) In so far as the jury is therein charged that, if the locomotive was not brought to a full stop by the employés of defendant company in charge thereof before reaching the crossing, defendant would be liable to plaintiff for such damages as his wife sustained, for the reason that the charge is more onerous than the law requires, in that it makes defendant company liable absolutely for the injury, although the jury might otherwise believe from the evidence in the case that the employés of said train exercised proper care to avoid inflicting injury upon plaintiff's wife.

"(2) Because, the evidence showing that plaintiff's wife was not a passenger on one of defendant's trains, defendant was under the duty to exercise only ordinary care for her safety, and as to whether it did or did not exercise such care is under the evidence in this case an issue of fact to be passed upon by the jury.

"(3) Because the effect of the charge, the evidence showing that the train was not brought to a stand, is to tell the jury that the only issue before them is the amount of damages that was sustained by plaintiff's wife.

"(4) Because the court should in his charge define negligence to the jury, and should charge them that, unless they believed from the evidence defendant to be negligent, it would be their duty to return a verdict for the defendant."

Signed by the attorneys for defendant, St. Louis Southwestern Railway Company of Texas.

Indorsed: "File No. 7164. Jno. Wadsack v. St. Louis Southwestern Railway Company of Texas."

The act above referred to also contains the following as an amendment to article 2061 of the Revised Civil Statutes of 1911: "The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided in the foregoing articles." This article is a part of chapter 19, tit. 37. It evidently refers to the articles which precede it in that chapter — articles 2058, 2059, and 2060. Those articles are as follows:

"Art. 2058. Whenever, in the progress of a cause, either party is dissatisfied with any ruling, opinion or other action of the court, he may except thereto at the time the same is made or announced, and at his request time shall be given to embody such exception in a written bill.

"Art. 2059. No particular form of words shall be required in a bill of exceptions; but the objection to the ruling or action of the court shall be stated with such circumstances, or so much of the evidence as may be necessary to explain it, and no more, and the whole as briefly as possible.

"Art. 2060. Where the statement of facts contains all the evidence requisite to explain the bill of exceptions, it shall not be necessary to set out such evidence in the bill of exceptions; but it shall be sufficient to refer to the same as it appears in the statement of facts."

It was the manifest purpose of the Legislature, in adopting these different amendments, to so reform the practice in our judicial procedure as to reduce the number of reversals on appeal for purely technical errors. Heretofore the rulings of the court in giving and refusing charges was regarded as excepted to in every instance, without any express reservations by bill or otherwise. The effect of the amendment to article 2061 is to place the rulings of the court in giving or refusing charges in the same category with other rulings not appearing of record as to the formalities required for their consideration on appeal. Appellate courts can now no more review the action of the trial court in...