Texas & N. O. R. Co. v. Syfan

• Decision Date: 04 November 1897
• Citation: 43 S.W. 551
• Parties: TEXAS & N. O. R. CO. v. SYFAN.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

43 S.W. 551

TEXAS & N. O. R. CO. v. SYFAN.¹

Court of Civil Appeals of Texas.

November 4, 1897.

Appeal from district court, Harris county; S. H. Brashear, Judge.

Action by Charles E. Syfan against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, defendant appeals. Modified.

Baker, Botts, Baker & Lovett, for appellant. W. C. Oliver and Schwander & Buffington, for appellee.

WILLIAMS, J.

Appellee recovered a verdict and judgment below against appellant for $5,561, as damages for personal injuries caused by defendant's servants. By his original petition, filed September 7, 1895, appellant alleged the date of his injuries to have been March 9, 1895, and alleged the wrong of defendant's servants to have consisted in the running of an engine up behind and opposite the horse hitched to the buggy in which he was riding along a public road which ran parallel with a spur track of defendant, and between it and a fence, and the intentional and negligent throwing of steam upon the horse, thereby frightening and causing it to run away, and throw plaintiff out of his buggy, and inflict the injuries complained of. By an amended petition, filed June 13, 1896, the same cause of action was set up, but additional allegations were made, explaining the situation of the road, fence, and spur track in their relation to each other, and charging that the defendant had constructed its spur track so close to the public road as to make it negligent for it to operate its engine over such track while persons were traveling along the road. It is also charged that the engineer and fireman were guilty of negligence in not slowing up or stopping the engine for a short time, to allow plaintiff to pass out of the narrow lane in which he was traveling, which, he alleged, he could have done by going 30 feet beyond the point where he was overtaken. The defendant filed special exceptions to the new allegations of negligence as setting up a new cause of action barred by limitation, but the exceptions were not urged. Defendant also pleaded the statute of limitations against the cause of action set up for the first time by the amendment.

The original petition stated as the only cause of action the wrongful manner of operating the engine. In so far as the amendment based the action upon negligence of the engineer and fireman in the running of the engine, it simply elaborated the allegations of the original petition, and did not set up a distinct cause of action. Thus the charge that the employés were guilty of negligence in not slowing up or stopping the engine after seeing plaintiff simply stated an additional fact germane to the cause of action originally asserted; that is, negligence in operating the engine. But, if the allegations showed any cause of action growing out of the mere construction and use of the track so near the road, it was an entirely new one. It did not depend upon the manner of running the engine by those in control of it, but rested upon an alleged negligence of defendant in so constructing its road, and using it while persons were traveling the public road. This negligence, if any was shown, consisted in so using the spur track at all. The only way, however, in which this question was raised in the lower court or on the appeal is by requested instructions directing the jury to disregard all evidence tending to establish the new cause of action. No objection was made to any of the evidence, and the portions of it which were designed or tended to prove such cause of action were not and are not pointed out. So far as we have been able to see, all of the testimony which could be held pertinent to this issue was equally pertinent to that made in the original petition. The charge of the court very plainly and unmistakably made plaintiff's right to recover depend on proof that the engineer and fireman saw plaintiff, and that they threw the steam upon him with intention to frighten his horse, or when they knew, or had reason to believe, that the noise would frighten the horse, and probably cause the injuries. The special instructions were unnecessary, and might very well have confused the jury in applying the evidence to the issue submitted by the court. Appellant was not prejudiced by their refusal. Besides the plea of limitation, defendant also answered by general denial and special plea that plaintiff was guilty of contributory negligence—First, in driving along a narrow lane so close to the track, when he knew of the operations of engines and trains over it; second, in so driving while intoxicated; third, in beating and jerking his horse after it shied from the engine; fourth, assumption of risk by driving along the lane, knowing the conditions existing.

The plaintiff introduced evidence tending to establish his case as alleged in his original petition, except that the evidence shows that the roadway was a private one. The situation where the casualty occurred was proved to be as alleged, and plaintiff and another witness testified to the occurrence substantially as it was alleged. On most material points there was a conflict of evidence, —that of plaintiff tending to show that steam was thrown on his horse, as at first alleged, and that this, alone, caused the horse to run, and throw plaintiff from his buggy; while that of defendant tends to show that plaintiff passed the narrow lane in safety, and that, his horse being restive, he caused it to run by whipping and jerking it. Upon all of these points the evidence was sufficient to sustain the verdict of the jury, adopting plaintiff's version. The main contention upon the facts is that the evidence does not show that the engineer or fireman saw plaintiff, or knew of his presence, as the charge of the court required. The plaintiff testified that, hearing the noise of the engine behind him, he looked back, and saw it approaching, and that a man was seated at the left side of the cab of the engine, looking out of the window at plaintiff, and laughing at him. He saw no one else on the engine, and did not know that the person was the engineer or fireman, or that he caused the engine to throw off the steam. He and other witnesses testified that for a considerable distance before the engine reached the place in question the ground was level, and the view from the engine unobstructed. Plaintiff was traveling in the same direction pursued by the engine, and was all the time near the track, and gradually getting nearer to it as the space between it and the fence became narrower. Three persons on the other side of the track saw plaintiff. On the engine, besides the engineer and fireman, were the switching crew of four men. All of these were produced by defendant, and all admitted seeing either plaintiff or his horse...