Houston Texas Cent. R. R. Co. v. Goodman , 38 Tex. Civ. App. 175 ( 1905 )

This is a personal injury suit, resulting in a verdict and judgment for the plaintiff for $2,250, and the defendant has appealed.

Plaintiff charged in his petition that as an employe of the Texas Telegraph and Telephone Company, he and other employes, with the consent of the defendant, were operating a hand car upon the defendant's railroad track; that while he and his associates were off the hand car repairing the telephone line, one of the defendant's railroad trains, negligently failing to give the usual and proper signals, approached the hand car at a rapid rate of speed, and that the plaintiff, becoming satisfied that if the hand car was not removed from the track, the railroad train would run into it, wreck the hand car, damage property thereon belonging to the plaintiff's employer, and seriously injure if not kill persons operating or riding on the train, and to avert such injury, he, without fault or negligence, and by the most extreme efforts on his part, lifted the hand car from the track and caused it to slide down an embankment; and that in so doing he exerted and strained himself to such an extent as to cause rupture of his abdomen, and other serious physical injuries.

The defendant in its answer interposed a general demurrer, special exceptions, a general denial and pleas of contributory negligence and assumed risk. The case was submitted to the jury in a very elaborate charge prepared by the court, and supplemented by certain special instructions given at the request of the defendant.

There is testimony in the record which sustains the findings of the jury in favor of the plaintiff on all the issues submitted to them; and we therefore overrule all the assignments of error which assail the verdict.

We also overrule the assignments which complain of the action of the court in refusing to sustain the general demurrer and special exceptions to the plaintiff's petition. We do not agree with appellant that the petition shows on its face that the proximate cause of the plaintiff's injuries was his own negligence and not the negligence of the defendant; nor can we endorse the contention that under no circumstances would it become the duty of those operating a railroad engine and train to blow the whistle in approaching a curve, in order to give warning to a licensee upon the track at or near the curve. Whether or not such duty existed under the circumstances developed in this case, was a question of facts to be decided by the jury.

Appellant has presented a number of assignments complaining of the court's charge, and the refusal of requested instructions. While the charge is very lengthy and perhaps subject to academic criticism, we do not believe that it contains any error of law of which the defendant can complain. In fact, its excessive volume seems to have been brought about by a studious effort on the part of the court to submit the case to the jury in a fair and impartial manner. The court gave some of the instructions requested by the defendant; and those refused, insofar as they presented the law applicable to the case, were covered by the court's charge.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.

Writ of error refused.