Opinion
No. 8365.
April 10, 1920. Rehearing Denied March 15, 1920.
Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
Action by J. F. Parsons against Walker D. Hines, Director General of Railroads. From a judgment for plaintiff, defendant appeals. Affirmed.
Chas. C. Huff, of Dallas, and Dinsmore, McMahan Dinsmore, of Greenville, for appellant.
Clark Sweeton, of Greenville, for appellee.
The statement found in appellant's brief is correct, and we adopt same as follows:
"This is a suit brought in the district court of Hunt county by appellee for personal injuries alleged to have been received by him while riding upon a car driven by a gasoline motor upon the track of appellant, in the nighttime, caused by the collision between the car upon which he was riding and another motorcar traveling in the opposite direction. The case was tried at the May term, 1919, of the district court of Hunt county by Hon. A. P. Dohoney, district judge of the Sixty-Second judicial district, with the aid of a jury, and the trial resulted in a verdict and judgment for the plaintiff for $15,000. Appellant filed an original and an amended motion for a new trial, which was overruled by the court, and the appellant excepted and gave notice of appeal, and has brought the case to this court for review.
"Plaintiff alleged in his petition that he was a blacksmith and worked in his shop at Dixon, in Hunt County, Tex.; that on December 2, 1918, agents and employés of appellant who were in charge of and operating a motorcar over the railroad employed plaintiff to make some repairs on the motorcar, and plaintiff made said repairs in his shop at Dixon, and that after the repairs were completed appellee, at the request of the agent and employés above mentioned, went with them on the car from Dixon to Lone Oak and return in order to determine whether the car was in good repair and good running order; that while en route from Dixon to Lone Oak, in the nighttime, the car on which appellee was riding collided with another car driven in the opposite direction, and that by said collision appellee was seriously and permanently injured. The negligence charged was that neither of the motorcars which collided was equipped with a headlight or any other kind of light, or with any character of signal to give any warning of its approach; that the persons operating the motorcars failed to keep a lookout for persons on the track; and that both of the motorcars were being operated at a dangerous rate of speed. Appellee alleged injuries as follows: `The mashing, bruising, laceration, and tearing of the bones, muscles, ligaments, tendons, and nerves of the left leg, from which a stiff knee resulted; the bruising, laceration, mashing, and tearing of his left side and the crushing and caving in of three lower ribs in the left side; the injuring of his left chest over the left lung, from which hemorrhages of the lungs resulted.' The defendant answered by general demurrer, general denial, and by special plea charging that appellee at the time of his injury was on appellant's premises without his knowledge or consent, and that he was not performing any service for appellant, but was engaged in the pursuit of his own private business, and that he was a trespasser upon defendant's railway track, that the motorcar on which appellee was riding at the time of his injury was not then, and had not been for some months, under the control or management or use of appellant, that if appellee repaired the motorcar he did not perform the work at the request of appellant, or for appellant's benefit, that the motorcar at the time appellee was injured was not being used in any wise in the service of appellant, or with his knowledge or consent, or for his benefit, but for the private ends and purposes of the persons then using it, and without authority or knowledge of appellant, and that appellee was not riding upon the motorcar at the invitation or request, or by the procurement, or with the knowledge or consent, of appellant, and also answered by plea of contributory negligence, and also by plea that any injury plaintiff received was slight and temporary only, and that any serious disease or ailment from which appellee may have afterwards suffered was caused, or existed, prior to the accident, or resulted from conditions existing prior to the accident"
The evidence establishes all of the material allegations in plaintiff's petition, and shows liability on the part of appellant.
It is contended by appellant, in substance that the burden was upon appellee to establish by evidence that E. M. Pace, driver of the motorcar, and who is charged with culpable negligence by appellant, was at the time engaged in appellant's business, and was acting within the scope of his authority; and also contended that said Pace was not acting for appellant in having said motorcar repaired, or in inviting appellee to ride upon said motorcar, or engaged in any business of appellant, and was not acting within the scope of his authority from appellant or with the knowledge or consent of appellant, and that the court erred in refusing peremptory instruction No. 2 to the jury for appellant.
The contention of appellant was correct if the evidence adduced was only susceptible of such a construction, but, if we understand it, it shows that at that time said Pace was in the employ of appellant, having been engaged by J. F. Pace, a section foreman, who was authorized to employ and discharge. At that time J. F. Pace had placed E. M. Pace in charge of the car to run it from Dixon to Lone Oak, and operating the car was familiar to E. M. Pace, as he had operated it on that day and at other times, and the motorcar was out of repair, and said Pace had called on appellee to make some repairs on the motorcar, which appellee had done, he being a blacksmith, and appellee had been asked by said E. M. Pace to ride on said car for the purpose of testing out said motorcar, which he was doing when injured through the negligence of an employé driving another motorcar traveling quite rapidly in an opposite direction from the one in which appellee was on, said car having no light on it. The motor used on the car was owned by J. F. Pace, and the car was used in the business of the appellant.
We are of the opinion that the evidence shows that E. M. Pace was acting within the scope of his apparent authority, and the court did not err in refusing requested charge No. 2. Prince v. Railway Co., 64 Tex. 144; Railway Co. v. Prince, 77 Tex. 560, 14 S.W. 171, 19 Am.St.Rep. 795; Lumber Supply Co. v. Phelps, 175 S.W. 743; Railway Co. v. Derby, 55 U.S. (14 How.) 468, 14 LI.Ed. 502; Railway Co. v. Cock, 68 Tex. 713, 5 S.W. 635, 2 Am.St.Rep. 521.
The second assignment of error is as follows:
"You are instructed in this case that the uncontroverted evidence shows that at the time of the alleged accident the plaintiff, J. F. Parsons, was voluntarily riding on a motorcar on defendant's line of railroad between Dixon and Lone Oak, and that it was dark and the plaintiff knew that the car was being run and operated without lights, and he was therefore guilty of contributory negligence in remaining on said motorcar when the same was being operated without light and you are therefore instructed to return a verdict for the defendant."
There was no error in refusing to give this charge. It requested the court to give a peremptory charge. Said charge was not correct, and if a charge on contributory negligence was improper at all, a correct one should have been asked, and been left to the jury to say whether under the circumstances appellee was guilty of contributory negligence. Railway Co. v. Shetter, 94 Tex. 196, 59 S.W. 533; Railway Co. v. Gray, 65 Tex. 32; Lumber Supply Co. v. Phelps, 175 S.W. 742.
In the case of Railway Co. v. Gray, supra, it is said:
"It is not contributory negligence not to anticipate that another will violate the law in a given particular and in not providing against such possible violations of it. 2 Thompson on Neg. p. 1472, § 18. Though the rules of the company may have required that the handcar keep out of the way of trains, and send out flagmen when by reason of short curves risk was involved, it certainly was not contemplated that they should anticipate danger when it could not possibly arise except by reason of a violation of rules on the part of the trainmen, and, through them, of the company itself. The handcar was upon the track at a time when, in the proper discharge of its duties, it was likely to be there. With the knowledge of this fact the employé s of the train were chargeable."
And in the case of Lumber Supply Co. v. Phelps, supra, to wit:
"Conceding that Mrs. Phelps was only a licensee, and was therefore bound to accept the roadbed, car, and equipment in the condition in which she found them when she took passage thereon, she did not by going upon said car assume the risk of injury caused by the negligence of the operator of the car, and it was the duty of Iverson, who was operating the car, to use ordinary care to prevent injuring any person who was lawfully thereon."
In Railway Co. v. Shetter, supra, it is said:
"In other words [it is contended] the brakeman must have known that plaintiff was in danger because he was about to do a negligent and dangerous act. We think it well settled that one person is not bound to anticipate negligent conduct on the part of another, and therefore that a jury would not be justified in finding that the brakeman, before he saw plaintiff actually in danger, knew that he was negligently going into danger."
Appellant also assigns as error the excessiveness of the verdict. The evidence shows that the result of appellee's injuries resulted in causing him to become a physical wreck, while at the time of his injury he was a stout, healthy, able-bodied young man 32 years of age. The testimony was sufficient to warrant the amount of the verdict.
Other assignments of error are presented, all of which have been examined, but we find none containing a reversible error.
The judgment is affirmed.