Lancaster v. Jarrett , 267 S.W. 518 ( 1924 )

After telling the jury to find for appellants if they believed order No. 14 was delivered to appellee, nothwithstanding they might also believe he did not know it had been delivered to him, the court, in the sixth paragraph of his charge, instructed the jury to find that appellee was guilty of contributory negligence if they believed from the evidence "that the rules of the defendant required plaintiff to read the train orders delivered to him aloud in the presence of the conductor when the conductor delivered such orders, and shall further believe that, if the plaintiff had read the orders aloud in the presence of the conductor, as required by the rules of the defendant, and that the absence of order No. 14, if it was absent, in plaintiff Jarrett's orders would have been discovered, and would have been supplied and the accident avoided, and if the jury shall further believe that such failure upon the part of Jarrett to read aloud the orders to the conductor under the attending circumstances was negligence, which negligence, if any, contributed to the injury of the plaintiff."

Before the charge was read to the jury appellants objected to the part thereof set out above, asserting that it conclusively appeared from the testimony that appellants' rules required appellee to read orders he had aloud to the conductor, and that he did not do so, and insisting that the court therefore should have instructed the jury that those matters appeared as facts instead of submitting to them questions as to whether they existed as facts or not. We agree it conclusively appeared that the order No. 8 delivered to appellee was one the rules required him to read aloud to the conductor, and that he did not comply with the requirement, and we agree that the court should have so instructed the jury, but we do not think, on the record as it appears here, that his failure to do so should operate to reverse the judgment. Railway Co. v. Nelson (Tex.Civ.App.) 111 S.W. 1062.

Appellants complain because the court refused certain special charges requested by them which, had the charges been given, would have instructed the jury that appellee was not entitled to recover anything of appellants if the absence of order No. 14 from the batch of orders delivered to him would have been discovered and the information it contained supplied to him and the collision avoided had he read the orders he had aloud to the conductor. It was not error to refuse the instruction, unless the jury had a right to say from the testimony that negligence of appellee in so failing to read orders he had was the sole proximate cause of the collision. We think the jury had no such right, if order No. 14 was not delivered to appellee, for in that event it conclusively appeared that appellants were guilty of negligence which was a proximate cause of the accident, when, having delivered order No. 8 to appellee, directing him to take the train to Gladewater, they failed to notify him that the freight train would be on the track and moving east at the point where the collision occurred. It is urged, further, as a reason why it was error to refuse the requested special charges, even if negligence of appellee in failing to read orders he had as required by appellants' rules was not the sole proximate cause of the accident, but instead was only negligence which concurred with negligence on the part of appellants in causing the collision, that the actionable negligence of appellants consisted alone in the failure of the conductor to discharge the duty which rested on both him and appellee alike to compare orders they had, respectively. Conceding, without deciding, that it appeared that such negligence on the part of the conductor was the only negligence chargeable against appellants as a proximate cause of the accident, we nevertheless do not think the contention should be sustained, for reasons stated in the opinion of Judge Levy, speaking for this court (and citing articles 6640-6642 R.S.), when the case was before us on the former appeal (258 S.W. 271). We did not think then, and do not now, in view of the statute referred to, that cases like Frese v. Ry. Co., 263 U.S. 1, 44 S. Ct. 1, 68 L. Ed. 131, Railway Co. v. Ropp, 76 Ohio St. 449, 81 N.E. 748, 11 L.R.A. (N. S.) 413, and Davis v. Payne, 108 Or. 72, 216 P. 195, cited by appellants, required a conclusion different from the one then reached by this court.

Another contention urged in appellants' brief is that, if it was not error to refuse the special charges above referred to, it was error to refuse certain other special charges requested by them which, had they been given, would have instructed the jury to find appellee guilty of contributory negligence if they believed order No. 14 was not delivered to him, but believed he would have been apprised of the contents of that order and have avoided the collision had he read orders delivered to him aloud to the conductor as required by the rules. The material difference between the charge the court gave and the one he refused was that in the charge he gave he told the jury to find that appellants were guilty of contributory negligence on the conditions stated only in the event they believed that the failure of appellee to read orders he had aloud to the conductor was negligence "under the attending circumstances." The charge the court gave was not objected to because of the qualification stated, and hence appellants are in the attitude of having waived any right they had to make such an objection. Article 1971, Vernon's Statutes. The refused charges were in effect contradictory of the instructions the court gave. The rule seems to be that a party has no right to complain of the refusal of the court to give instructions which conflict with instructions given and which the complaining party did not object to. City of Fort Worth v. Ashley (Tex.Civ.App.) 197 S.W. 307; Isbell v. Lennox (Tex.Civ.App.) 224 S.W. 524. Therefore appellants' contention is overruled without determining whether the refused charges but for the waiver should have been given or not.

We think error requiring a reversal of the judgment has not been shown. Therefore it is affirmed.