Wichita Valley Ry. Co. v. Williams

• Decision Date: 05 February 1926
• Docket Number: (No. 68.)
• Citation: 3 S.W.2d 141
• Parties: WICHITA VALLEY RY. CO. v. WILLIAMS et al.
• Court: Texas Court of Appeals

3 S.W.2d 141

WICHITA VALLEY RY. CO. v. WILLIAMS et al.

(No. 68.)

Court of Civil Appeals of Texas. Eastland.

February 5, 1926.

Appeal from District Court, Taylor County; W. R. Ely, Judge.

Suit by Arthur V. Williams, by J. D. Williams and wife, his next friends, and others against the Wichita Valley Railway Company. From the judgment and the denial of its motion for a new trial, defendant appeals. Reversed and remanded for new trial.

Certified questions answered, 116 Tex. 253, 288 S. W. 425.

Kirby, King & Overshiner, of Abilene, and Thompson, Barwise & Wharton, of Fort Worth, for appellant.

Ben L. Cox and W. J. Cunningham, both of Abilene, for appellee.

RIDGELL, J.

This suit was brought in the district court of Taylor county by Arthur V. Williams by and through his next friends, to wit, his father and mother, J. D. and Alice Williams, and also by J. D. Williams and Alice Williams in their own behalf, who were all appellees herein, against the Wichita Valley Railway Company, appellant; the suit being for damages alleged to have been sustained by them by reason of certain personal injuries sustained by Arthur V. Williams as result of negligence of the appellant. It was alleged that Arthur V. Williams was a minor under 21 years of age, and when injured was living at home with his parents, and as a result of said injuries they had spent certain sums of money, and that they had also been damaged as a result of the decreased earning capacity of their said minor son, and the said Arthur V. Williams prayed for damages in his own behalf, through his next friends, for the sum of $45,000, and his father and mother as damages in their own behalf the sum of $5,471.75. It was alleged that Arthur V. Williams was a passenger on the train of appellant, and that while alighting from said train at certain switch on Rose street, in the city of Abilene, which was a regular stop, by custom of defendants and by request and with the consent of the conductor in charge of the train, the said Arthur V. Williams attempted to alight from the train, and that the appellants failed to stop said train for a sufficient length of time with which to permit said Arthur V. Williams to safely alight therefrom, and that the engineer in charge of said train and other employees of defendant negligently caused said train to be backed up suddenly and with great violence just as said plaintiff had reached or was about to reach the top step of the coach, and as he was about to alight he was violently and suddenly without any warning thrown from the step to the ground under the train; that his left arm and hand were crushed and mangled under the wheels of the train; that it was necessary to amputate said left arm about halfway between the elbow and wrist joint; and that he suffered great mental and physical pain and inconvenience as a result thereof and will in the future. It was alleged that he sustained other injuries, but the above statement is believed to be sufficient for the discussion of matters involved in this appeal. It was alleged that said Arthur V. Williams was a teacher in the public school at Abilene, earning $125 per month. The defendant answered by general demurrer, special exceptions, and general denial, as well as specific denial of the alleged negligence and facts alleged in appellee's second amended original petition. The appellants answered that appellee was guilty of contributory negligence. The cause was tried before a jury and in response to answers to special issues, the trial court rendered judgment in favor of Arthur V. Williams in the sum of $24,000, and in favor of his father and mother, damages in the sum of $1,000.

Appellant filed its motion for judgment and new trial, which motion was overruled, and the matter is now before this court for review.

The first three propositions made by appellant involve the same complaint of error and are directed to the charge of the court on degree of care required by operators of the passenger train of appellants; the proposition being:

"The trial court erred in giving in charge to jury the following: `Carriers of passengers are required by law to exercise a very high degree of care in handling their passengers.'"

It is insisted that the court should have further instructed the jury what would be a "very high degree of care," and the failure to do so left the jury to surmise and speculate and determine for themselves what would constitute same. "A very high degree of care" is generally defined as that degree of care that would be used by a very cautious, prudent, and competent person or persons under like or similar circumstances.

The charge of court is correct as far as it goes, but the contention and complaint that it should have gone further and defined what would constitute that "high degree of care" is correct and supported by the decision of our courts. The appellants made timely objections to the charge, but submitted no special charge embracing the objection.

We would ordinarily feel constrained to hold the objection was waived by failure to request submission of a correct special charge, and for that reason no affirmative error is presented, but it seems that our Supreme Court has settled that matter.

In applying article 1971, Vernon Sayle's Civ. St. 1914, in the case of G., C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S. W. 561, 32 L. R. A. 1183, the court speaking through Cureton, C. J., in a very exhaustive and forcible opinion, announces the rule as follows:

"It is immaterial whether the matter objected to in the court's charge is a mere defective or incomplete statement of the law or issue to be determined, or is affirmatively erroneous; objections which sufficiently specify the error will preserve the point on appeal, without the necessity of again directing the court's attention to the same subject by special charge."

It follows that the appellant, having directed the attention of the court to the vice in charge, did all required to preserve the point, and, the court having failed to define what constituted "high degree of care," we must follow the long line of decisions and sustain the assignments which will require a reversal of this case. Lamar v. Panhandle & Santa Fé Ry. Co. (Commission of Appeals of Texas, section B) 248 S. W. 34; G., C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S. W. 561, 32 A. L. R. 1183 (Supreme Court of Texas, Chief Justice Cureton writing the opinion); I. & G. N. Ry. Co. v. Welch, 86 Tex. 203, 24 S. W. 390, 40 Am. St. Rep. 829; Patterson v. Williams (Dallas Court of Civil Appeals) 225 S. W. 89; Fort Worth & N. O. Ry. Co. v. Enos (Tex. Civ. App.) 50 S. W. 595 (Opinion by Judge Finley); Denison B. & N. O. Ry. Co. v. Barry (Tex. Civ. App.) 80 S. W. 634; May v. Hahn, 22 Tex. Civ. App. 365, 54 S. W. 416; Freeman v. Moreman (Tex. Civ. App.) 146 S. W. 1045.

The appellees insist that the charge with the omission complained of was more onerous against plaintiff than against appellants; that appellants cannot point out any injury by the omission and therefore same does not present affirmative error, and, invoking rule 62A, this court should affirm the case.

We cannot agree with appellees. In the case of Railway Co. v. Welch, 86 Tex. 203, 24 S. W. 390, 40 Am. St. Rep. 829, the lamented Judge Brown, writing for the Supreme Court in a very similar case, answering certified question, says:

"The charge is not more objectionable for what it means than for the want of any definite meaning. The object of giving a charge to a jury is to furnish them a guide by which they can determine from the evidence whether or not the party sought to be charged has done or failed to do the things which by law creates the liability. The term `all possible care' might be understood by one man to mean all that the party could foresee, while it might mean to another all that might have been done as viewed after the occurrence. Besides, the law does not require everything to be done which might be foreseen, but only such as might appear to be necessary, having that care for the safety of the passengers that a very prudent man would have, and to exercise that high degree of care that such man would exercise under the same circumstances."

It stands unchallenged that it was error for the court to fail to define "high degree of care," and no decision of our courts or any rule provides any escape along the harmless error route. We can see injury in the failure to so charge the jury.

The jury, from instruction, had no just or intelligent idea of what the law required the defendant to do to secure the safety of the passengers. They were entitled to have benefit of...