Texas & P. Ry. Co. v. Hancock

• Decision Date: 18 February 1933
• Docket Number: No. 12779.,12779.
• Citation: 59 S.W.2d 313
• Parties: TEXAS & P. RY. CO. v. HANCOCK.
• Court: Texas Court of Appeals

59 S.W.2d 313

TEXAS & P. RY. CO. v. HANCOCK.

No. 12779.

Court of Civil Appeals of Texas. Fort Worth.

February 18, 1933.

Rehearing Denied April 1, 1933.

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Action by J. H. Hancock against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Cantey, Hanger & McMahon, of Fort Worth, and C. W. Trueheart, of Longview, for appellant.

Jones & Jones, of Marshall, and R. E. Buck and J. H. Trickey, both of Fort Worth, for appellee.

DUNKLIN, Justice.

The Texas & Pacific Railway Company has appealed from a judgment in favor of J. H. Hancock for damages for personal injuries sustained by him alleged to have resulted from the negligence of one of defendant's employees. The jury assessed plaintiff's damages at the sum of $22,600, for which judgment was rendered, but later the court required a remittitur of $7,600 which was granted by plaintiff and the final judgment was for $15,000, the amount of the verdict less the remittitur.

Plaintiff was employed by the defendant as foreman and lineman in its telegraph and telephone department and was charged with the duty of constructing and maintaining telegraph and telephone lines used between stations in order to enable trainmen to keep in touch with the train dispatchers who directed the movement of trains. The city of Alexandria, in the state of Louisiana, was plaintiff's headquarters, from which he worked in different directions in performing the duties of his employment. He was furnished a hand car for that purpose, operated by an electric motor, and while returning from an easterly direction traveling in a westerly direction his motor car collided with an automobile driven by R. O. Wyatt who was engaged in the service of defendant as a civil engineer, and as a result of that collision plaintiff was thrown from his motor car and sustained injuries for which the recovery was awarded.

The place of the collision was in defendant's yards about three miles from the city of Alexandria and at a point where the main line of defendant's road on which plaintiff was traveling in his motor car was crossed by a highway on which Wyatt was traveling in his automobile at the time of the accident. Plaintiff was traveling in a westerly direction and Wyatt in a northerly direction. There were four railroad tracks at that point running east and west parallel with each other and approximately 13 feet apart; the main line, on which plaintiff was traveling, being the north track, and the highway, on which Wyatt was traveling, ran practically north and south and crossed all those tracks. As plaintiff approached the crossing a switch engine attached to two or three cars and engaged in switching operations was on the second switch track south of the main line and was obstructing the highway at its crossing of the switch track. Wyatt, who was south of that crossing, stopped his automobile on account of that obstruction ahead of him but as soon as the switch engine moved off the crossing he started ahead north and upon seeing the motor car approaching the highway crossing of the main line he stopped his machine in order to let it pass, but at the time he made the stop the bumper of his automobile had already protruded over the south rail of the main line and before he could back the machine the collision occurred, resulting in plaintiff's injury in the manner stated.

In answer to special issues the jury found that as Wyatt approached the place of collision he did not use ordinary care to keep a lookout for vehicles approaching on the track on which plaintiff was approaching and that failure was a proximate cause of the collision; that the rate of speed at which Wyatt was driving his automobile at the place of the collision was negligence and such negligence was a proximate cause of the collision. Other issues submitted were as follows:

"4-a. Was the plaintiff negligent in attempting to cross the grade crossing at the time and under the circumstances immediately prior to this accident? Answer: No.

"4-c. Was such negligence, if any you have found in 4-a the sole proximate cause of the collision? Answer: No.

"5. Was the plaintiff using ordinary care to keep a lookout for vehicles approaching on the grade crossing from the south as he approached the point of collision? Answer: Yes.

"7. Was the rate of speed at which the plaintiff was operating the motor car as he approached the point of the collision, and just prior thereto, negligence? Answer: No.

"8-a. Was such negligence, if any you have found as inquired about in No. 7, the sole proximate cause of the collision? Answer: No.

"9. Was the plaintiff negligent in standing up on the motor car? Answer: No.

"10-a. Was such act as inquired about in No. 9 the sole proximate cause of the collision? Answer: No.

"11. Did the collision occur without any negligence on the part of either Wyatt or Hancock? Answer: No.

"12. What sum, if paid now in cash, do you find should be awarded to the plaintiff, if any at all, which will fairly and reasonably compensate him for the injuries sustained in this collision? Answer: $22,600.00.

"13. An employee assumes the risk of injury from dangers obviously incident to the discharge of duties of his employment in the way and manner in which such employee voluntarily performs the work of his employment, or is required by his contract to perform such work of his employment. He is not required to anticipate negligence of other employees unless he knows of the same and the dangers to himself therefrom in time, by the exercise of ordinary care on his part, to have avoided the injury, or should have known thereof by the exercise of ordinary care in time to have avoided being injured. Bearing in mind this instruction, please answer:

"Did Hancock assume the risk of the collision between his motor car and the automobile driven by Wyatt? Answer: No."

The issues of negligence on the part of Wyatt, determined by the jury, were all presented in the plaintiff's pleadings and the issues of negligence on the part of plaintiff were duly presented in the defendant's pleadings, both on the theory of contributory negligence and the theory of assumed risk, but with specific allegations of fact as a basis therefor rather than in the general terms in which those issues were submitted, as will appear in subsequent portions of this opinion.

Error has been assigned to the instruction given by the court in paragraph 13, copied above, as a guide to the determination of that issue, to the giving of which the defendant presented the following exceptions and objections before the same was read to the jury:

"Defendant excepts to the instructions of the court in connection with the submission of issue No. 13, because (a) that part of said instruction which reads `He is not required to anticipate negligence on the part of his employer', raises a question not in issue under the evidence; (b) because said feature of the charge is a charge on the weight of the evidence; (c) because same charges a presumption not defined by statute; (d) because said charge is abstract and misleading."

Many decisions are cited to the effect that such a charge is not an explanation or definition within the meaning of the provisions of article 2189, Rev. Civ. Statutes, reading as follows: "In submitting special issues the court shall submit 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."

And further holding that a charge of that kind is clearly a general charge upon a special issue and is improper when the case is tried on special issues. Texas & P. Ry. Co. v. Perkins (Tex. Com. App.) 48 S.W.(2d) 249; Owens v. Improvement District, 115 Tex. 263, 280 S. W. 532; Diadone v. Houston Belt & Terminal R. Co. (Tex. Civ. App.) 26 S.W.(2d) 366; Besteiro v. Besteiro (Tex. Civ. App.) 18 S.W.(2d) 829. The giving of that instruction would be reversible error but for the fact that appellant's right to complain of it was waived by the request made by its counsel for the submission of the same issue with an instruction of a like general character, as shown by the following:

"Gentlemen of the Jury:

"Assumed risk is a term in a contract of employment expressed by the parties or implied by law from the circumstances of the employment, by which the servant agrees that dangers of injury obviously incident to the discharge of the duties of the servant's employment in the way and manner in which such servant voluntarily performs or executes the work of his employment, shall be at the servant's risk.

"Bearing in mind the foregoing definition of assumed risk, you will please answer the following special issue:

"Did J. H. Hancock assume, under the circumstances and conditions in evidence before you, the risk of the collision which occurred between the gas motor upon which he was riding, and the automobile which was operated by R. O. Wyatt? Answer `yes' or `no'."

Appellant stresses that portion of the court's instruction to the effect that an employee does not assume the risk of negligence of other employees unless he knows of the same, or could have known of it in time to have avoided the negligence which was not included in the requested instruction of defendant. The instruction so given by the court was a more comprehensive statement of the rule pertaining to assumed risk than that requested by the defendant, but we believe it clear that appellant cannot escape waiver of the right to object to the court's instruction by reason of that difference. It is sufficient to say that appellant invited the error in the instruction because it was a general charge. 3 Texas Jurisprudence, pp. 1031-1036, inclusive.

Among other defenses the defendant pleaded specially that prior to the accident and while plaintiff was approaching the crossing in question he knew it was raining...