St. Louis Southwestern Ry Co. of Texas v. Barrett

WILLSON, O. J. (after stating the facts as above). The assignments are predicated upon the action of the trial court in giving certain instructions, and in refusing to give certain requested instructions, to the jury. [1] First. It is insisted that the fifth paragraph of the charge given, when considered in connection with the sixth and eighth paragraphs thereof, was erroneous and calculated to mislead the jury to the prejudice of appellant’s right. We think the part of the charge objected to was not applicable to the case made by the testimony, and should ndt have been given, but we think it was more calculated to help than to harm appellant with the jury, and therefore- that appellant should not be heard to complain of it. It appeared without dispute in the testimony that appellee, with the wagon and team of mules, was not “on a highway adjacent to” appellant’s tracks, but was on its premises for the purpose of unloading freight from one of its cars, and therefore was within a rule stated as follows in S Elliott on Railroads, § 1248: “One who comes upon the premises of a railroad company, in the usual course of business with it, for the purpose of loading and unloading or delivering and receiving freight, is not a mere licensee, but is entitled to the care due one who is iivited to come upon the premises of another.” [2] Appellant owed to appellee as an invitee the duty to use ordinary care for his safety while he was on its premises. Railway Co. v. Cardwell, 187 S. W. 1073. The question for the jury was whether appellant had exercised such care or not. That question was we think sufficiently submitted to the jury by said sixth and eighth paragraphs of the charge. It follows that we are of the opinion, not only that the contention with reference to said fifth paragraph should be overruled, but also that the contention with reference to said eighth paragraph (that the jury were thereby wrongfully authorized to find appellant guilty of negligence if they believed the mules were “frightened from noise or the escape of steam from a locomotive,” although they might also believe that appellant’s employés “were without knowledge of the fright of the team or even of their proximity to the locomotive”) should' be overruled. It appears from appellant’s brief that it was of the opinion that appel-lee must recover, if at all, on the “discovered peril” doctrine. As indicated by what has been said above, we do not agree to that, but think he was entitled to recover if it appeared that appellant had failed to discharge a duty it owed him to exercise ordinary care for his safety while on its premises at its invitation. *559 [3, 4] In the seventh paragraph of the charge the trial court told the jury, as appears from the statement above, that it was “the duty of persons in control of or using teams easily frightened and unaccustomed to noises and steam such as are ordinarily incident and reasonably necessary to the proper operation of a locomotive” to exercise care for their own safety. Appellant contends it was appellee’s duty to exercise care with reference to the mules, whether they were easily frightened, etc., or not, and insists that the instruction therefore was erroneous. In view of said paragraph of the charge given, appellant requested the court to instruct the jury that it was— “the duty of persons in control of or using teams which from any Cause or for any reason may become frightened while being driven about or near where any locomotives are, or where anything may occur to frighten such teams, to exercise sueh care and prudence to prevent such teams from running away and causing injury as a person of ordinary care would exercise under the same or similar circumstances for their own safety.” If it was error to refuse the request to give to the jury the instruction just quoted (and we think it was, if the testimony made a question as to whether appellee was guilty of contributory negligence or not), the error should, we think, be treated as harmless, in view of the fact that it appeared without dispute in the testimony that the mules were “skittish, and would run away sometimes.” But we have not been referred to, and have not found in the record, testimony which we think required the submission to the jury of an issue as to whether appellee was guilty ■of contributory negligence or not. There is nothing in the record as we read it suggesting that appellee did anything which contributed to cause the mules to run away which a reasonably prudent person would not have done, or failed to do anything such a person situated as he was would have done to prevent them from running away, or injury to himself when they did run away. The judgment is affirmed. Footnotes [1] ©mFor other cases see same topic and KEY-NUMIÍER in all Key-Numbered Digests and Indexes