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

• Decision Date: 18 January 1939
• Docket Number: No. 2199-7245.,2199-7245.
• Parties: TEXAS & N. O. R. CO. v. CROW et al.
• Court: Texas Supreme Court

Page 649

123 S.W.2d 649

TEXAS & N. O. R. CO. v. CROW et al.

No. 2199-7245.

Commission of Appeals of Texas, Section A.

January 18, 1939.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by Mrs. Mattie B. Crow and others against the Texas & New Orleans Railroad Company. Judgment for plaintiffs was affirmed by Court of Civil Appeals, 101 S.W.2d 274, and defendant brings error.

Judgments of the Court of Civil Appeals and of the trial court reversed, and cause remanded.

Baker, Botts, Andrews & Wharton, of Houston, A. L. Bevil and T. M. Jordan, both of Kountze, and Duff & Cecil, of Beaumont, for plaintiff in error.

E. B. Pickett, Jr., and C. B. Cain, both of Liberty, for defendants in error.

HICKMAN, Commissioner.

In the trial court Mrs. Mattie B. Crow, for herself and as next friend for her two minor children, recovered judgment for damages against Texas & New Orleans Railroad Company in the sum of $17,500 on account of the death of Carl C. Crow, husband of Mrs. Crow and father of her children which judgment was affirmed by the Court of Civil Appeals. 101 S.W.2d 274.

This is the second time this case has been before this Court. Our opinion upon the former appeal is reported in 121 Tex. 346, 48 S.W.2d 1106. Since the only errors assigned are trial errors, it becomes unnecessary to make a full statement of the case. It is sufficient, we think, to state that Mr. Crow lost his life as the result of a collision at a public crossing between a passenger train operated by the Railroad Company and an automobile in which he was riding.

The application was granted upon an assignment raising the question that the charge of the trial court contained general charges improper to be given in a case submitted upon special issues under Article 2189, R.S.1925. That question will be considered first. After defining in the charge the terms, negligence, ordinary care, proximate cause and preponderance of the evidence, these instructions were given to the jury:

"7. And you are further instructed that it is the duty of a railroad company operating its engines and trains over a public crossing at a public roadway to exercise such care as a person of ordinary prudence would exercise under the same or similar circumstances to prevent and avoid injury to travelers and persons who may be lawfully making use of such highway and crossing.

"8. And you are also charged that it is the duty of a person who is using such a public crossing, and of a person who is about to use such crossing, to exercise ordinary care to avoid injury to himself and damage to the vehicle he may be driving.

"9. And further you are instructed that the law of this State requires a railroad company, while running a train along its track, to blow the whistle and ring the bell attached to the locomotive engine pulling the train, at a distance of at least eighty rods from the place where any public road crosses the railroad track, and to keep the bell ringing continuously until it crosses such public road or stops, and a failure to comply with this requirement, the law says, is negligence, and that the railroad company shall be liable for all damages which may be sustained by any person by reason of such a failure to so blow the whistle on the engine or to so ring the bell thereon, provided that the injury and damage complained of are proximately caused by such failure."

Article 2189 provides, in substance, that in all jury cases the court may, and upon request of either party shall, submit the cause upon special issues. If submitted by that method, the court shall in his charge give "such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues." Recognizing that cases sometimes arise of such nature that they can not properly be determined by the simple method of submitting special issues and defining the legal terms employed therein, the Legislature made provision in that same article for the submission of such cases upon general charges. The article clearly provides that, if the case lends itself to a determination upon special issues, that method must be followed upon request and may be followed without request; but if, on the other hand, the case be of such nature that it will not lend itself to that method of determination, then it should be submitted upon a general charge. If general instructions on the law are required for an understanding by the jury of its duties and functions, then the case is not one for submission on special issues. The article provides for two distinct...