Trinity & Brazos Valley Ry. Co. v. Lunsford

• Decision Date: 11 June 1913
• Parties: TRINITY & BRAZOS VALLEY RY. CO. v. LUNSFORD.
• Court: Texas Court of Appeals

160 S.W. 677

TRINITY & BRAZOS VALLEY RY. CO. v. LUNSFORD.

Court of Civil Appeals of Texas. Austin.

June 11, 1913.

Rehearing Denied October 22, 1913.

Appeal from District Court, Freestone County; H. B. Daviss, Judge.

Action by James T. Lunsford against the Trinity & Brazos Valley Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

N. H. Lassiter, Robert Harrison, and R. M. Rowland, all of Ft. Worth, for appellant. Wroe & Geppert, of Teague, and Simkins & Simkins, of Corsicana, for appellee.

RICE, J.

This suit was brought by appellee against appellant to recover damages for personal injuries received by him while engaged as a switchman in the employ of appellant in its yards at Teague, when endeavoring to couple two box cars to a switch engine; the negligence relied upon for recovery being that appellant permitted its track and roadbed to become so out of repair as to render it dangerous to appellee in the performance of his duties as switchman and without which said injury would not have occurred. Appellant answered by general denial and pleas of contributory negligence and assumed risk. A jury trial resulted in a verdict and judgment in behalf of appellee for the sum of $15,000, of which $5,000 was remitted at the direction of the court, and the verdict permitted to stand for the sum of $10,000, from which judgment this appeal is prosecuted.

While various assignments of error are presented by the record, all of which have had our most careful consideration, yet it is deemed advisable to discuss only two of them, since, in our judgment, the first of these is determinative of the appeal.

In the sixth paragraph of its main charge to the jury, the court gave the following: "You are hereby instructed that, if the defendant company failed to use ordinary care to keep its roadbed and track in proper and safe condition or caused or permitted same to become so defective and out of repair as to render the operation of switching thereon dangerous to its employés, this would be negligence." This charge is assigned as error on two grounds; the first being that the company was only required to use ordinary care to keep its roadbed and track in reasonably safe condition, whereas said charge imposed a greater obligation, requiring the company to use ordinary care to keep the roadbed and track "in proper and safe condition." Second. Said charge was upon the weight of evidence and invaded the province of the jury in that it told them it would be negligence on the part of the defendant to cause or permit its roadbed and track to become so defective and out of repair as to render the operation of switching thereon dangerous to its employés instead of leaving it to the jury to say whether or not such would be negligence under the circumstances.

The question of negligence vel non is one of fact for the determination of the jury, and it is error for the court to state that certain facts or group of facts constitute negligence. See Railway Co. v. Cooper, 32 Tex. Civ. App. 592, 75 S. W. 328; Glenn Lumber Co. v. Quinn, 140 S. W. 863. The first case cited was a suit against a railway company for the killing of a mule; plaintiff having alleged that on the station ground at the town of Miami the defendant had negligently constructed certain fencing in such a way as to create a "pocket" adjacent to the track, thereby making the places dangerous for animals. On this phase of the case the court charged the jury as follows: "Now I instruct you that if, within the knowledge of the defendant company, such a place has been maintained by the company, and if you find this and also find by a preponderance of the testimony that the same is dangerous to stock, to horses, and that they may be induced, on the passing of trains, to go across the railroad track from such point in an effort to escape trains and should be killed thereby, it would be negligence on the part of the railroad company in maintaining such a place at such a point." The court in discussing this charge used the following language: "Now it cannot be said as a matter of law that the maintenance by a railroad company of a `dangerous' place is negligence, and the court erred in so telling the jury in this instance. The jury should be left to determine this matter in view of all the surrounding circumstances."

In Glenn Lumber Co. v. Quinn, supra, where the appellee sued for damages sustained while working as a sawyer at a sawmill, the jury were in effect told if certain conditions were found to exist and certain things had been done, without reference to whether these conditions resulted from negligence or whether such acts referred to constituted negligence, then to find for the plaintiff. This was held to be error, for the reason that the question of negligence was not submitted for the determination of the jury, and that...