Texas Cent. R. Co. v. Waldie

• Decision Date: 27 March 1907
• Citation: 101 S.W. 517
• Parties: TEXAS CENT. R. CO. v. WALDIE.
• Court: Texas Court of Appeals

101 S.W. 517

TEXAS CENT. R. CO. v. WALDIE.

Court of Civil Appeals of Texas.

March 27, 1907.

Appeal from District Court, McLennan County; John M. Furman, Judge.

Action by Ernest C. Waldie, etc., against the Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. A. Kibler, for appellant. Boynton & Boynton, for appellee.

KEY, J.

In January, 1906, Ernest Waldie, while in the employ of the Texas Central Railroad Company, and assisting in loading iron rails from one car to another, sustained certain injuries, to recover damages for which this suit was brought, and resulted in a judgment in his favor for $750, and the railroad company has appealed. The defendant's answer included exceptions to the petition, a general denial, and pleas of assumed risk and contributory negligence.

The fourteenth paragraph of the court's charge reads as follows: "Now if you find from a preponderance of the evidence that at the time and place as alleged the plaintiff Ernest C. Waldie, was a member of a section gang, working in the employment of defendant, and under the direction and orders of ____ Collins, a section foreman of defendant; and that said gang was then and there engaged in loading rails from one car to another, and that while lifting one of said rails and assisting in lifting the same in connection with other members of said gang, under the orders and direction of said Collins, as foreman, the rail turned or fell upon the hand of the said Ernest C. Waldie mashing and injuring the same as alleged; and if you further find defendant and its foreman Collins was guilty of negligence, as that term has been hereinbefore defined, in attempting to do said work with an insufficient number of men or in failing to provide and furnish appliances or tools reasonably necessary to enable said gang to perform said work with reasonable safety, or in failing to notify plaintiff that said rail would be dropped; and if you further find that such negligence, if any, was the direct and proximate cause of plaintiff's injury, then, if you so find, you will find for the plaintiff and so say by your verdict, and assess his damages as hereinafter directed unless you should find for the defendant under charges hereinafter given you."

Error is addressed to this charge, because it invades the province of the jury, and assumes as a fact that there were an insufficient number of men to safely do the work, and failure by the defendant to furnish appliances and tools reasonably necessary for the performance of the work with reasonable safety. Charges similarly framed have been held subject to the objection urged and made grounds for reversal. Railway v. Williams, 40 S. W. 161, 17 Tex. Civ. App. 675; Railway v. Smith (Tex. Civ. App.) 63 S. W. 1065. Having a statute which, in jury trials, prohibits the judge from commenting upon the weight of testimony, it has been repeatedly held that any act of the judge which intimates to the jury his opinion as to the weight of testimony submitted to the jury is prohibited by that statute. This may be done in many ways, as shown by repeated decisions. Castleman v. Sherry, 42 Tex. 59; Dwyer v. Bassett, 63 Tex. 275; Railway Co. v. Christman, 65 Tex. 374; Mayo v. Tudor, 74 Tex. 471, 12 S. W. 117; Schunior v. Russell, 83 Tex. 83, 18 S. W. 484; Hanna v. Hanna, 3 Tex. Civ. App. 51, 21 S. W. 720. Counsel for appellee contend that, when construed as a whole, the charge is not subject to the criticism urged, because in paragraph 15, the jury were instructed as follows: "If you find from the evidence that the plaintiff was injured at the time and place as alleged, but that defendant exercised ordinary care in furnishing appliances that were reasonably safe, and furnished a number of men to do the work that were reasonably sufficient for the purpose, and caused and directed the work to be done in a reasonably safe manner under all the circumstances in evidence, and that plaintiff's injury, if any, was the result of one of the risks or dangers ordinarily incident to his employment, then if you so find you will find for the defendant." If it be conceded that a consideration of the entire charge leads to the conclusion that the court intended to submit all questions of fact to the jury, it does not necessarily follow that the fourteenth paragraph could not be construed as intimating an opinion as to the weight of testimony bearing upon important issues, upon which the testimony was in conflict. In Edwards v. Dickson, 66 Tex. 615, 2 S. W. 718, our Supreme Court, after holding that a particular paragraph of the charge, which instructed the jury that if they found certain facts to return a verdict for the defendant, was erroneous, the court said: "This is in conflict with the previous paragraph of the charge, and, however, one learned in the law may construe the several paragraphs...