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

• Decision Date: 04 November 1905
• Citation: 90 S.W. 343
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. PARKS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

90 S.W. 343

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. PARKS.^*

Court of Civil Appeals of Texas.

November 4, 1905.

Additional Conclusions of Fact, December 2, 1905.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

Action by S. R. Parks against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

E. B. Perkins and Templeton, Crosby & Dinsmore, for appellant. Evans & Elder, for appellee.

BOOKHOUT, J.

S. R. Parks brought this suit against the St. Louis Southwestern Railway Company of Texas to recover damages on account of personal injuries alleged to have been occasioned by sparks and cinders getting in his eyes while he was a passenger on one of the company's trains. The defendant pleaded the general issue, and specially denied the negligence charged against it, and also pleaded negligence on the part of the plaintiff in failing to have his injuries properly treated. A jury trial resulted in a judgment for the plaintiff for $2,875. Defendants appealed. This is the second appeal of this cause. On the first appeal the cause was transferred to the Fourth District and the judgment of the trial court there affirmed. 73 S. W. 439. A writ of error was granted by the Supreme Court, and for error in the court's charge the judgment was reversed. 76 S. W. 740, 8 Tex. Ct. Rep. 452.

Conclusions of Fact.

S. R. Parks, on the 20th of December, 1900, while a passenger on one of appellant's trains, as it approached Texarkana from the west, was injured by sparks and cinders escaping from the engine pulling the train, causing the loss of his right eye and serious injuries to the left eye. Parks had left his seat and gone to the front end of the car to get a drink of water, when the door of the car was opened, through which sparks and cinders entered, striking appellee in his face and eyes. In deference to the verdict we find that the engine was not equipped with the most approved spark arrester in general use to prevent the escape of sparks and cinders, and that the agents and employés of appellant did not use proper care to keep the same in repair, and they did not use care in the operation of its engine to prevent the escape of sparks and cinders; and appellee's injuries are the proximate result of its negligence in these respects, and that as a result he sustained damage in the amount found by the jury. Conclusions of Law.

In its first assignment of error appellant complains of the action of the court in overruling its motion for new trial, because it insists "the verdict of the jury is contrary to the evidence in that the great weight and overwhelming preponderance of the evidence is to the effect that the plaintiff did not get any cinders in his eyes and was not injured as alleged in his petition or as testified to by him. That the great weight and overwhelming preponderance of the evidence is to the effect that the plaintiff's eyes have always been sore and defective; that the same was due to hereditary causes and natural diseases; that by reason thereof the sight of his right eye was practically lost and that of his left eye somewhat impaired." The second assignment presents substantially the same contention. The evidence as to whether appellee was injured at the time and in the manner alleged by him was conflicting. It was the peculiar province of the jury to settle this conflict and determine the issue. They found the issue in favor of the appellee. There is ample testimony in the record to sustain their finding, and hence appellant's contention presented in its first and second assignments is overruled.

Error is assigned to the following definition of negligence given by the court in his charge: "Negligence, as applied to railway companies engaged in the transportation of passengers, is a failure to exercise such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under the same or similar circumstances." It is contended that this is not a correct statement of the law under the facts of this case, and that this charge states the same in the strongest possible terms in favor of plaintiff, and in an argumentative form. We think this charge states the law, and correctly defines negligence as applied to the duty owed by a carrier to its passengers. Railway Co. v. Halloren, 53 Tex. 53, 37 Am. Rep. 744; Railway Co. v. Welch, 86 Tex. 203, 24 S. W. 390, 40 Am. St. Rep. 829. It is substantially the same as the charge approved by the Supreme Court in the Halloren Case, except that it omits to state that railroads are not insurers of the safety of their passengers. There is nothing in this charge from which the jury could have inferred that railroads are the insurers of the safety of passengers. The charge instructed the jury that it was the duty of defendant to use such high degree of foresight as to possible dangers, and such high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under the same circumstances. It does not tell them that the defendant was required to absolutely guard against all possible dangers, but to use such care and prudence as would be used by very cautious, prudent, and competent persons under the same or similar circumstances. The court, at the request of defendant, gave its special charge No. 6, instructing the jury: "That the defendant did not, by accepting plaintiff as a passenger on its train, become an insurer of his safety. It was only bound to use that high degree of care which would have been used by very cautious, competent, and prudent persons under the circumstances, and, if it used such care and notwithstanding that fact sparks and cinders escaped from its engine and got into and injured plaintiff's eyes, then the plaintiff is not entitled to recover, and you should find a verdict for defendant." This charge, taken in connection with the main charge, fully measures up to the rule in the Halloren Case.

Complaint is made of the fourth paragraph of the main charge which reads: "Therefore, if you believe from the evidence that on the 20th day of December, 1900, plaintiff purchased a ticket from defendant which entitled him to become a passenger on defendant's cars from the city of Greenville, Tex., via Texarkana, to Cairo, Ill., and that after purchasing said ticket he boarded one of defendant's trains and was received as and became a passenger thereon, to be transported to Cairo, Ill., and that when said train had reached a point near Texarkana, that plaintiff was standing near the door of the coach in which he was riding, and if you further find that while he was so standing, if he was standing, that the door of the coach was opened and cinders or sparks were emitted from the defendant's engine pulling said train, and struck plaintiff in his eyes and injured him as alleged in his petition." This charge is assailed as erroneous, in that, the plaintiff having alleged that the accident was caused by the conductor opening the door of the car, it was error for the court to ignore such allegation in his charge to the jury and authorize a recovery by plaintiff upon a state of facts not alleged in the petition. This contention was overruled by the Court of Civil Appeals for the Fourth District on the former appeal of this case. 73 S. W. 440. The court held that this allegation in the petition was not one of substance, but merely a matter of inducement, and it was not necessary to establish it or submit the issue to the jury. This holding was not in any way disaffirmed by the Supreme Court when it reversed the cause. 76 S. W. 740.

The fifth assignment assails the following paragraph of the court's charge: "And if you further believe from the evidence that the defendant had negligently failed to equip said engine with proper and suitable appliances for the prevention of the escape therefrom of cinders or sparks, or that the defendant negligently failed to have said appliances in reasonably good repair and condition as regards the escape of cinders or sparks therefrom, or if you believe from the evidence that the agents and servants of defendant, in charge of said engine, negligently operated and handled said engine at the place where plaintiff alleges he was injured, and if you believe that the negligence, if any you find there was on the part of the defendant in either respect above mentioned, was the proximate cause of the injury, if any, sustained by plaintiff, and that his injuries, if any, were not proximately contributed to by negligence on his part, then you will find for plaintiff, and assess his damages under the instructions hereinafter given." It is contended that this charge is erroneous, in that it is not a correct statement of the law, and at the same time did not apply the law to the facts of the case, but simply required of the jury findings upon certain legal conclusions, and because the same authorized a finding by the jury that the defendant was negligent in not having the spark arrester in good repair or that its employés were negligent in the operation of the engine when there was no evidence whatever authorizing such finding or tending to show negligence on the part of defendant in either respect. This charge announced a correct proposition of law and properly applied the same to the facts. The contention that the charge is erroneous in authorizing a recovery by plaintiff, if defendant negligently failed to have its appliances for preventing the escape of sparks in reasonably good repair and condition for that there was no evidence tending to show that the spark arrester was not in good repair and condition at the time of the injury, is not sustained by the record. There was evidence tending to show that hot sparks and cinders did escape from the engine, and that they came in contact with plaintiff's eyes and...