Trinity & B. V. Ry. Co. v. Walden
| Decision Date | 13 February 1909 |
| Citation | 116 S.W. 372 |
| Parties | TRINITY & B. V. RY. CO. v. WALDEN. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hill County; W. C. Wear, Judge.
Action by N. L. Walden against the Trinity & Brazos Valley Railway Company for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
Andrews, Ball & Streetman and Morrow & Smithdeal, for appellant. Collins & Cummings and McCart, Bowlin & McCart, for appellee.
Appellee was injured by being thrown from a hand car while being operated on appellant's railway track, and he sues to recover damages therefor. The negligence alleged was that of a co-employé, who, while assisting in propelling the car, loosed one hand, turned to look in the direction the car was going, and fell from the car, which caused it to be thrown from the track, injuring appellee. A verdict and judgment was rendered against the railway company, and it appeals.
The appellant complains of the second paragraph of the court's charge, which reads: "Now, if you believe from a preponderance of the evidence that on or about the 1st day of August, 1907, the plaintiff was in the employ of the defendant as a section hand, and while in the discharge of his duties as such and while riding upon one of the defendant's hand cars that one Kissick was assisting in propelling said car, and that while so doing he, the said Kissick, negligently had his back turned toward the front of said car and turned in the direction in which said car was moving, and in said position negligently had hold of one of the handles used in propelling said car, and while he was so engaged negligently and carelessly leaned back more than was necessary in performing said work, and was further back than was reasonably necessary to do said work properly, and negligently turned around and looked forward releasing his hold with one hand, and only holding said handle with the other hand, and you further believe that said acts and conduct on the part of said Kissick was negligence as the same is hereinbefore defined, and that as a proximate result of said negligence, if any, said hand car was derailed and injured plaintiff as alleged in his petition, and that his said injury, if any, was the proximate result of the negligence, if any, on the part of said Kissick, you will find for the plaintiff, unless you find for the defendant on other issues submitted to you." The contention of appellant is that said charge is error, because it presented to the jury a ground of negligence upon which to base a recovery as follows: "That Kissick leaned back more than was necessary in performing his duty," and "whether Kissick negligently had his back turned toward the front of said car"—there being no proof that Kissick leaned back more than was necessary, or that he was negligent in having his back toward the front of the car. We think appellant's contention should be sustained, because the record fails to show testimony to warrant the giving of said charge.
The judgment will therefore be reversed and cause remanded.
Reversed and remanded.
NOTE.
[a] (Tex.) The substance of an issue need only be proved to authorize its being presented to the jury by a charge.—(Civ. App. 1907) Texas & N. O. R. Co. v. Scarborough, 104 S. W. 408, judgment affirmed (Sup. 1908) 108 S. W. 804.
[b] (Tex. 1908) Where a turntable was charged to be defective, in that it was not suited to engines of the size plaintiff was engaged in turning at the time of the accident, and there was no evidence that it was "out of repair," an instruction requiring plaintiff to prove that the turntable was defective and "out of repair" was objectionable as misleading. Judgment (Civ. App.) 106 S. W. 1149, reversed.—Currie v. Missouri, K. & T. Ry. Co. of Texas (Sup.) 108 S. W. 1167.
[c] (Tex. 1908) In an action to recover for loss by negligent delay in transporting cattle to market, where the contract of transportation provided that notice of any claim for damage should be given before the cattle were unloaded for destination as a condition precedent to recover, and recited that the freight rate was less than the usual rate for carrying cattle, the stipulations were not binding unless there was an actual reduction from the ordinary freight rate; and there being evidence tending to show that the cattle were shipped on a verbal contract in which nothing was said about a reduction in freight rate and no reduction made, a charge that the written stipulations were not binding if the shipment was made on a verbal contract, and no reduction in the freight rate was made under either contract, was proper.—(Civ. App.) St. Louis, I. M. & S. Ry. Co. v. Boshear, 108 S. W. 1032, judgment affirmed (Sup.) 113 S. W. 6.
[d] (Tex. 1906) An instruction stating that the jury could consider the other freight being handled over the road at the same time in determining whether the cattle were transported in a reasonable time was misleading, where there was no evidence as to the amount of freight being shipped at the same time.—Dupree & McCutchan v. Texas & P. Ry. Co. (Civ. App.) 96 S. W. 647.
[e] (Tex. 1906) In an action for damages to cattle in transportation, where the evidence was insufficient to raise an issue that the cattle were weak and needed to be unloaded to recuperate, an instruction submitting such issue was erroneous.—Dupree & McCutchan v. Texas & P. Ry. Co. (Civ. App.) 96 S. W. 647.
[f] (Tex. 1906) In an action against a carrier for injuries to a shipper of a horse, the shipper alleged that he was to load and securely fasten the horse. The carrier alleged that it was the shipper's duty to load and fasten the horse. The shipper's testimony that he was to see that the horse was properly tied was undisputed. Held, that a charge that the undisputed evidence showed that the shipper was to load the horse on the car and see that it was securely tied was not erroneous as being without evidence to support it.—Houston & T. C. R. Co. v. Wilkins (Civ. App.) 98 S. W. 202.
[ff] (Tex. 1906) In an action against a carrier for injuries received by the shipper of a horse in consequence of being kicked by it while in the car with it, the proof showed that the horse was loaded into the car some distance from the railroad yard, and that before the shipper had time to fasten the doors of the car and securely tie the horse the car was taken to the yard. The shipper remained in the car. When the car stopped in the yard, it was bumped into by other cars, frightening the horse, and the shipper was injured while attempting to pacify it. Held, that an instruction that if the carrier started with the car over the protest of the shipper, and before he had had time to securely tie the horse, and while the door of the car was open, and if while the car was being moved to the yards the horse became frightened, and if the shipper undertook to prevent injury to the horse, and while doing so was injured, he was entitled to recover, was not objectionable as presenting issues not warranted by the evidence. —Houston & T. C. R. Co. v. Wilkins (Civ. App.) 98 S. W. 202.
[g] (Tex. 1906) Where, in an action against a carrier for injuries received by a shipper of a horse in consequence of being kicked by the horse while in the car with it, there was no pleading nor evidence that the shipper agreed to ride in the car with the horse, with the door open and the horse untied, and the evidence showed that he protested against so riding and that he was forced to do so or take the chances of his horse being injured, an instruction that, if the shipper consented that the car might be moved to a railroad yard with the door open and the horse untied, he could not recover was properly refused.—Houston & T. C. R. Co. v. Wilkins (Civ. App.) 98 S. W. 202.
[gg] (Tex. 1906) Where, in an action against a railway company for injuries at a crossing, the evidence established that the proximate cause of the injuries was the negligent sounding of the whistle when the engine was on the crossing, and not the failure to give the statutory signals before approaching the crossing, it was error to submit as a ground of negligence the failure to give the statutory signals.—Paris & G. N. Ry. Co. v. Calvin (Civ. App.) 98 S. W. 222.
[h] (Tex. 1906) Where, in an action for injuries to a passenger on a freight train, the evidence showed that, at and prior to the accident, both the conductor and the rear brakeman were in and about the caboose and apparently engaged together in the operation of the train, the use of the word "employés" instead of the word "employé" in the charge embodying a correct principle of law as applied to the case was not erroneous.—International & G. N. R. Co. v. Cruseturner (Civ. App.) 98 S. W. 423.
[hh] (Tex. 1906) A passenger received injuries because of the failure of the carrier to furnish a safe means of transfer from one of its trains to another. It was about dark when the transfer was undertaken. The passenger had not been over the ground, and had no means of knowing in advance the condition of the ground, or anything more than the state of the weather, and she had no means of learning in advance that the carrier had failed to provide a dry means of transfer. Held, that the court properly refused to charge that if the passenger, by the exercise of care, could have learned of the condition of the ground before she made the transfer, she could not recover for its consequences.— Texas & N. O. R. Co. v. Harrington (Civ. App.) 98 S. W. 653.
[i] (Tex. 1906) Where, in an action on a contract, defendant pleaded a subsequent verbal contract, but failed to plead and prove any consideration therefor, it was error to submit any question on that subject.—Walker v. Tomlinson (Civ. App.) 98 S. W. 906.
[ii] (Tex. 1907) Where, in an action for injuries to a passenger, the evidence failed to show that defendant's agents fraudulently concealed the contents of a release which plaintiff signed, or...
To continue reading
Request your trial