April 12, 1916. Rehearing Denied June 28, 1916.
Appeal from McLennan County Court; Geo. N. Denton, Judge.
Suit by Adams Washam against the Southern Traction Company. Judgment for defendant, and plaintiff appeals. Affirmed.
Chas. B. Braun and Wm. R. Saunders, both of Waco, for appellant. Nat. Harris and Spell Sanford, all of Waco, for appellee.
We take the following statement of the nature and result of this case from appellants' brief:
"This suit was brought by Adams Washam, appellants, plaintiffs in the court below, against the Southern Traction Company, appellee, defendant in the court below, for damages to an automobile, alleged to have been caused by a street car of the defendant company negligently running into the said automobile. Plaintiff alleged, in substance, that as his automobile was crossing the track of the said defendant company, a street car, owned and operated by the said defendant, ran into the said automobile, seriously damaging the same; that the street car was being operated at a high and dangerous rate of speed, and that no gong was sounded or warning of any kind given; that no effort was made to stop the said street car by the operatives of the same when they saw the perilous condition of plaintiffs' automobile upon the track of defendant company; further, that the defendant company negligently backed its street car from off of the automobile after the collision, seriously damaging the automobile while so doing. The defendant company denied all the allegations of negligence, and specially pleaded that the plaintiff was guilty of negligence in the manner in which he ran his automobile upon the track of the defendant company. The cause was tried before a jury, and submitted to them upon a general charge of the court. The jury returned a verdict for the defendant."
Appellants assign error as to the charge of the court, in that it did not state the issues made by the pleadings. The charge of the court does submit the issues raised, in that it informs the jury as to what constitutes negligence and discovered peril, and instructs them to find for the plaintiffs if the motorman was negligent in the operation of the car, or if, after having discovered appellants' peril he failed to use all the means at his command to prevent the injury; and also instructs the jury that if they find appellants were guilty of contributory negligence, to find for the appellee, unless they find for the appellants as to discovered peril. No evidence was offered as to the car's not being properly equipped with air brakes. It is the better practice for the court in its charge to distinctly instruct the jury as to what are the issues involved. The practice of referring the jury to the pleadings for the issues is not to be encouraged. Electric Co. v. Nelson, 34 Tex. Civ. App. 72, 77 S.W. 978; Manufacturing Co. v. Femelat, 35 Tex. Civ. App. 36, 79 S.W. 869; McCarty v. Railway Co., 21 Tex. Civ. App. 568, 54 S.W. 421. However, it is not, generally speaking, such affirmative error for the court to fail to state the issues as will require a reversal. Railway Co. v. Lehmberg, 75 Tex. 66, 12 S.W. 838; Railway Co. v. Alberti, 47 Tex. Civ. App. 37, 103 S.W. 701; Railway Co. v. Garcia, 54 Tex. Civ. App. 59, 117 S.W. 208. A case will not be reversed where there is no affirmative error in the charge. If either party is not satisfied with the charge as not being sufficiently explicit, it is his duty to request an additional charge, which was not done in this case as to the matter here under consideration. In Railway Co. v. Garcia, supra, the court said:
"If the court had omitted a material portion of the pleadings of the appellant in the statement of its defenses, this would not, of itself, have been an affirmative error, and, in the absence of a refusal to give a special charge covering the omission, there was no ground for complaint. A court is not required to state any more of the pleadings of the parties than he deems necessary; and, if there should be an omisssion, the party complaining should request a special charge before he will be heard to urge this omission on appeal as a ground for reversal."
It was not error for the court to instruct the jury, as was done in the special charge given at the request of appellee, that the appellants could not recover unless appellee was guilty of negligence in some of the ways alleged in appellants' petition.
Appellants requested the following special charge, which was refused:
"Gentlemen of the jury, you are instructed that if you believe from the evidence that said street car, under all the circumstances, was operated by the defendant at a high and dangerous rate of speed, if you find it was so operated, and that but for the operation of said street car in such manner said collision would not have occurred, and that such operation in such manner, if it was, directly and proximately caused this collision, then in that event you will find for the plaintiff, and so say by your verdict."
The vice in this requested charge is that it is upon the weight of the evidence, in that it tells the jury that certain acts, if committed by the appellee, would constitute negligence; whereas, that was an issue for the jury to decide; and also it ignores the defense of contributory negligence. For these reasons the court did not err in refusing to give this charge.
Appellants assign error upon the following paragraph of the court's charge:
"But on the other hand, if you find from the evidence that the plaintiff Washam was guilty of negligence in driving the automobile upon the tracks of the defendant, that is, if you believe from the evidence that the plaintiff Washam did not exercise that degree of care that a person of ordinary care would exercise under the same or similar circumstances in driving the automobile upon the tracks of the defendant company, and that such negligence upon the part of said plaintiff Washam, if any, contributed to and was the direct and proximate cause of the injuries to the said automobile; and if you further find from the evidence that after said motorman or employé did discover said perilous condition of said automobile, he did use all the means within his power to prevent said colllision — then your verdict will be for the defendant."
This charge was favorable to the appellants, assuming that the evidence raised the issue of discovered peril, which is doubtful.
Finding no error of record, the judgment of the trial court is affirmed.