Opinion
No. 5449.
March 24, 1915. Rehearing Denied April 21, 1915.
Appeal from Harris County Court, at Law; Clark C. Wren, Judge.
Action by H. W. Templeton against the Galveston, Harrisburg San Antonio Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Baker, Botts, Parker Garwood, Lane, Wolters Storey, and Paul Kayser, all of Houston, for appellant. Love, Channell Fouts, of Houston, for appellee.
This is a suit for damages, instituted by appellee, arising out of the death of two mules and injuries to a wagon, inflicted by a moving train of appellant at a crossing on a public road. A trial by jury resulted in a verdict and judgment in favor of appellee for $402.
The grounds of negligence were a failure to give signals of the approach of the train by bell or whistle, excessive speed, and failure to exercise ordinary care to prevent injury to the mules and wagon when their peril was discovered. The evidence indicated that the train was running at a high rate of speed when approaching a town and a public crossing which was in constant public use. There was evidence tending to show that the bell was not rung nor the whistle sounded when the train approached the crossing.
The first and third assignments of error are disposed of by our conclusions of fact. The evidence showed that the train consisted of three day coaches and three Pullman coaches, about 400 feet in the aggregate in length, and the engine and tender, 60 feet in length, giving a train length of between 450 and 500 feet. The engineer saw the mules on the track when they were about 400 feet from the engine, and, although he swore he did all he could to stop the train, the engine went the train's length, 450 or 500 feet, beyond the crossing before it was stopped. The engineer swore that the train, when running at a rate of 40 miles an hour, could be stopped in 500 or 600 feet, but on this occasion it went from 900 to 1,000 feet before, it was stopped. This shows that the train must have been moving at a fearful and reckless rate of speed, or very slight attempt was made to stop the train when the mules and wagon were seen on the track. In either event, appellant was negligent The track was level. Timber obstructed the view of drivers of wagons approaching the crossing.
The second assignment of error is too indefinite to be considered. The proposition is fully as indefinite as the assignment. A proposition is obscure that states:
"The portion of the charge complained of is so indefinite, confusing, and misleading that the jury could not possibly have comprehended the law attempted to be presented therein."
Wherein the charge was "indefinite, confusing and misleading" is not indicated in assignment, proposition, or statement. Similar assignments of error and propositions have been condemned. Railway v. Vollrath, 40 Tex. Civ. App. 46, 89 S.W. 279; Railroad Co. v. Boothe, 126 S.W. 700; Railway v. Averill, 136 S.W. 98.
The fourth assignment of error is overruled. The charge of which complaint is made is not open to the attack made upon it. There was testimony tending to show that the peril of the mules and wagon was discovered by appellant, and the charge properly submitted the issue to the jury. If there had been error in the charge, appellant should not complain, because it requested a charge embodying the very things of which it now complains. Under the facts of this case, however, the charge was correct. Appellant could not have prevented the collision in any way, except by stopping the train or slackening its speed, and there could be no objection to the charge mentioning those matters. If there had been any other means of preventing the collision suggested by the evidence, there might be some grounds for objection to the charge. Railway v. Reynolds, 103 Tex. 31, 122 S.W. 531; Railway v. Hodges, 102 Tex. 524, 120 S.W. 848; Railway v. Hodges, 54 Tex. Civ. App. 364, 118 S.W. 767.
The evidence was uncontradicted that the engineer had actual knowledge of the peril of the mules and wagon, and that he could have stopped the train if he had not been running at a fearful rate of speed; and the evidence clearly indicates that the train could have slowed down so as to give the mules an opportunity to leave the track. There is nothing to indicate that the train had slackened its speed when it reached the crossing, for, if the evidence of the engineer is true, he could, at the speed he claims he was making, have stopped the train in the distance passed over after it went by the crossing.
The charge, whose refusal is complained of in the fifth assignment of error, ignored the question of slowing down the train altogether, and was therefore objectionable. The testimony of appellee shows that, if the train had slackened its speed, the wagon would probably have left the track before it was struck. The charge of the court fairly and fully presented the law of discovered peril. The fifth assignment is overruled.
The issue of contributory negligence on the part of the driver of the wagon was clearly presented by the charge of the court, and it was not error to refuse the special charge on that subject requested by appellant. The jury was justified in finding that the driver of the mules was not guilty of contributory negligence.
The judgment is affirmed.