Wells Fargo & Co. v. Benjamin

• Decision Date: 27 October 1915
• Docket Number: (No. 2774.)
• Citation: 179 S.W. 513
• Parties: WELLS FARGO & CO. v. BENJAMIN.
• Court: Texas Supreme Court

Page 513

179 S.W. 513

WELLS FARGO & CO. v. BENJAMIN.

(No. 2774.)

Supreme Court of Texas.

October 27, 1915.

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

Action by W. S. Benjamin to recover for personal injuries against Wells Fargo & Co. From a judgment of the Court of Civil Appeals (165 S. W. 120), affirming a judgment for plaintiff, defendant brings error. Affirmed.

Baker, Botts, Parker & Garwood, of Houston, Beard & Davidson, of Marshall, and Young & Stinchcomb, of Longview, for plaintiff in error. S. P. Jones, of Marshall, for defendant in error.

YANTIS, J.

W. S. Benjamin, the defendant in error, recovered a judgment against Wells Fargo & Co., plaintiff in error, for personal injuries alleged to have been sustained in October, 1911, while he was on the platform of the Texas & Pacific Railway Company, at its passenger station at Marshall, Tex., where he had gone to make inquiry at the ticket office about passenger rates covering a trip which he had in contemplation. While on the platform, a box fell from one of the plaintiff in error's loaded trucks, and struck him in the right temple, from which his injuries are alleged to have resulted.

Two grounds of negligence were alleged to be the proximate cause of the injuries complained of: One, that the plaintiff in error negligently loaded said truck so as to permit and cause the box or crate to fall from the same; the other, that the plaintiff in error, its agents, servants, and employés, negligently handled and operated and managed said truck in such manner and way as to cause the said box or crate to fall from the truck and strike the plaintiff.

The plaintiff in error, being the defendant in the trial court, pleaded in defense contributory negligence on the part of the defendant in error, Benjamin, it alleging that he was guilty of contributory negligence in that he walked or stood by the truck of the plaintiff in error at such close proximity thereto as to permit a crate or box to fall off of the truck upon him; also, it alleged the injury to be the result of an unavoidable accident, in which it alleged that none of its employés were guilty of negligence. It also pleaded assumed risk, but the evidence did not warrant a submission of this issue to the jury, and no complaint is made here of the failure to submit such issue.

The verdict and judgment are assailed because the court refused to give plaintiff in error's special charges Nos. 10, 12, and 13. The refusal to give these special charges presents the only questions for our determination, since we approve the conclusions reached by the Court of Civil Appeals upon each of the other assignments. It is contended by the plaintiff in error that it was entitled to have a charge given grouping the facts upon which it relied to establish contributory negligence, and that these charges did so. There can be no doubt but that in a proper case this is the correct rule, where the pleading and evidence make the issue, and where such is the case, it is a substantial right which should be accorded the litigant. It is unnecessary for us to determine whether such issue was raised by the pleading and evidence in this case, in view of the conclusion we have reached with reference to the accuracy of the charges requested. When a correct charge in such a case is presented, it should be given; but an erroneous charge, of course, should be refused. Whether the charges requested in this case were correct presents the main question for our determination.

Defendant in error's special charge No. 10 is as follows:

"You are instructed that if you find from the evidence that the plaintiff was walking or standing by the moving truck, at the time he was struck, and that a person of ordinary care, under the same circumstances, would not have walked or stood by it, you will find for the defendant, regardless of whether or not you find that one or more of the employés of the defendant was guilty of negligence in loading the truck or handling it."

This charge fails to require the jury to find that the negligence of the plaintiff, if the jury found that he was negligent, proximately contributed to his injuries. It instructs the jury, in substance, that if the plaintiff was negligent, in the manner set out, to find for the defendant. But to find the defendant in error guilty of negligence would not authorize the defeat of his recovery. If the defendant negligently inflicted injuries upon him, he should not be permitted to recover if he himself was guilty of negligence which proximately contributed to his injuries; but, assuming that he was guilty of negligence, this fact would be no bar to his recovery if it did not proximately contribute to his injuries. If each party to the suit was guilty of negligence, then it became a question for the jury to determine, the trial being had before a jury, whose negligence proximately caused the injury. The charge requested did not permit the jury to determine this question. It amounted to a peremptory charge in favor of the plaintiff in error, to the effect that if the defendant in error was guilty of...