Kansas City Southern Ry. Co. v. Coomber

LEVY, J. (after stating the facts as above). It is thought that the evidence objected to in the second and third assignments of error, bearing, as it did, upon negligence bringing about the injury, was not improperly admitted ; and these assignments are overruled. [2] As the court’s main charge sufficiently embodied, it is believed, the applicable rule of law, there was no reversible error in refusing to give the special charges made the basis of assignments of error Nos. 6, 12, and 15. [3] The seventh and eighth assignments of error object to portions of the thirteenth and fourteenth paragraphs of the court’s charge as being upon the weight of evidence. Taking each instruction in its entirety, there is not, it is concluded, ground afforded for reversible .error, inasmuch as the instructions ultimately required the jury to find as a fact, not only that the particular conditions of the engine and the track existed, but also that they were negligent acts.on the part of the railway company. [4,5] The eleventh assignment of error challenges the seventeenth paragraph of the court’s charge as being unintelligible, an erroneous statement of the law, and conflicting in principle with a special charge given. The instruction is lacking in concise expression, and a portion of it is somewhat indefinite in meaning. But, when the instruction is read in connection with the special charge, the meaning of the whole is sufficiently definite and apparent, and not likely to have misled the jury in an understanding of it. The effect of the two instructions was to leave to the jury the decision of the proximate cause of the derailment and injury. By the court’s instruction the jury were in substance and meaning informed that upon a finding by them that spikes were placed on the rail by persons for whose conduct the railway company was not responsible, and that the spikes being on the rail was the proximate cause of the derailment, the appellee could not recover; but that upon a finding by them of negligence on the part of the railway company in respect to the engine or track, either or both, and that such negligence was the proximate cause of the derailment, and that such injury would not have happened but for such negligence, then appellee could recover. The special charge concisely informed the jury that, if the derailment was found from the evidence to be solely due to and caused by spikes being on ■ the rail, the appellee could not recover. The evidence clearly raised an issue of fact as to the proximate and sole cause of the derailment; and the instruction, in connection with the special charge, was not legally erroneous. Appellant may have been relieved of liability if the spikes were on the rail through no fault of its, and the spikes were either the sole or the proximate cause of the derailment. But if appellant was guilty of the alleged negligence, and such negligence was the sole cause of the injury, or if the injury proximately resulted in whole or in part through the negligent acts, the company would not be relieved of liability. Bonner v. Wingate, 78 Tex. 336, 14 S. W. 790; Railway Co. v. Boyce, 39 Tex. Civ. App. 195, 87 S. W. 395; 4 Labatt’s Master and Servant (2d Ed.) § 1580. See principle in Markham v. Navigation Co., 73 Tex. 247, 11 S. W. 131; Railway Co. v. McWhirter, 77 Tex. 350, 14 S. W. 26, 19 Am. St. Rep. 755. The court’s charge in respect to assumed risk, as complained of in the thirteenth and fourteenth assignments of error, is not, it is concluded, affirmatively erroneous. [6] By the sixteenth assignment of error the appellant complains of the refusal to give a special charge in respect to contributory negligence on the part of appellee, based on voluntarily jumping or alighting from the train. The record does not disclose or raise an issue that appellee jumped from the engine. On the- contrary, the appellee, according to the record, did not succeed in alighting from the engine before it turned over. It is thought that, in the circumstances appearing here, any question of contributory negligence is not raised, and the court did not err in refusing the special charge. We have considered the remaining assignments of error, and conclude they present no reversible error. Judgment affirmed. Footnotes [1] <@=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes