Opinion
No. 2127.
May 8, 1919. Rehearing Denied May 22, 1919.
Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
Action by S. J. Whatley against the St. Louis, San Francisco Texas Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Dinsmore, McMahon Dinsmore, of Greenville, and J. L. Lockett, Jr., of Ft. Worth, for appellant.
Clark Sweeton, of Greenville, for appellee.
This appeal is from a judgment in favor of the appellee for the sum of $1,000 as damages for injury to his eye caused by the escape of steam from one of the appellant's locomotives. The injury occurred under the following circumstances: The appellee and his son were engaged in delivering lumber for shipment at Celeste, a station in Hunt county on the appellant's line of railroad. Each of them was upon this occasion driving a team for the purpose of unloading at the depot platform. The appellee drove his team in between the platform and the main line of the railway, a space of approximately 131/2, feet. It was near nightfall, and was beginning to grow dark. According to the appellee's testimony, just as he had proceeded a part of the way into this narrow space he discovered the headlight of a passenger train approaching from the north. He states that at that time he could not go back or forward. When the train was within about 50 or 75 feet of him the engine began to emit a large volume of steam and he got down from his wagon for the purpose of holding the animal nearest to the train, fearing that it would become frightened by the steam; that put him within about 3 feet of the railway track. The train passed, still emitting steam, which burned the side of his face and injured one of his eyes, causing, as he claims, great pain and the permanent impairment of the vision of that eye. Witness could not tell from what portion of the boiler the steam came, but stated that it was in such a volume and so dense and hot that it forced him to abandon his team in order to get out of danger. He also says the engineer in charge of the locomotive was looking at him at the time. This, however, was denied by the engineer, who testified that he saw no one at that place as his train passed through Celeste on that occasion. He also denied that he permitted his engine to emit any steam at that time or place.
Among other defenses pleaded by the appellant was contributory negligence on the part of the appellee in driving his team between the main line and the platform. It was alleged that other places had been provided for unloading lumber at the depot, and that the appellee knew that the train would soon pass over that line. The court submitted the issue of contributory negligence in the following portion of his general charge:
"It was the duty of the plaintiff upon the occasion in question to exercise ordinary care for his own safety, and a failure upon his part to do so would be contributory negligence. Contributory negligence as used in this charge means some negligent act upon the part of the plaintiff which, combining or concurring with the negligence, if any, of the defendant, proximately caused or contributed to the injury complained of.
"Now, bearing in mind the instruction in the preceding paragraph as to contributory negligence, if you believe from the evidence that the plaintiff could have caused his wagon to have been driven to some other portion of the platform further from the track, and that causing or permitting the same to be driven in the position it was in was negligence, and that such negligence on his part caused or contributed to the injuries, if any, sustained by the plaintiff, you will find for the defendant."
Appellant complains of the refusal of the court to give two special charges requested by it upon that issue. Counsel for the appellee insists that the evidence did not raise an issue of contributory negligence; and we think there is much force in the argument. If the testimony of the appellee be true, the jury was fully warranted in finding that the appellant's employés in charge of the engine on that occasion were guilty of negligence in causing the emission of an excessive volume of steam. The only danger, according to the record in this case, to which the appellee exposed himself by driving between the platform and the railway track was that resulting from the unnecessary escape of steam from the passing locomotive. Both he and his team were beyond danger of collision, and he testified without contradiction that his team was gentle and would not have been frightened by the ordinary passage of a train.
The principal question, then, before the jury was, not whether the act of letting off steam at that time or place was negligence, but whether any such deed was committed. It was not disputed that if the engineer was guilty of letting off steam in the manner testified to by the appellee such conduct was wholly uncalled for by any operative requirement. Appellant's master mechanic, who testified upon the trial, stated that it was contrary to order for steam to be let off at such times and places. Appellee could hardly be charged with contributory negligence unless it could be said that a reasonably prudent man would have anticipated such negligent conduct on the part of the engineer. In any event, we think the charge of the court on contributory negligence was sufficient to cover all defenses upon that issue raised by the evidence.
There was nothing misleading about the definition of proximate cause given by the court in his general charge. The jury were plainly told that —
"If you do not believe from the evidence that the employés of the defendant, St. Louis San Francisco Railway Company of Texas, caused steam or hot water to escape from its engine upon the occasion in question as alleged by the plaintiff, and that the same was negligence, and that such negligence, if any, was the proximate cause of the injuries, if any, to the plaintiff, you will find for the defendant."
If the plaintiff was injured in the manner alleged, and that was the issue, there can be no room for doubt as to what was the proximate cause of his injury.
Appellant complains of the refusal of the court to sustain its challenge of the juror Branche for cause. The bill of exception shows that Branche, in reply to questions propounded to him on his voir dire, answered that it had been for a long time a large part of his business to help plaintiffs in suits against railway companies for personal injuries, in making claims therefor and in preparing such claims for suits and in managing such claims of plaintiffs against railroads; that there was at that time a suit pending in the district court of Hunt county, and which he was expecting would be tried at the current term of the court, in which he was so interested and in which the attorneys for plaintiff in this case were the plaintiff's attorneys. He further said he had no interest in this case, and that he believed he could hear and decide the case fairly and impartially, and that in trying this case he would not be influenced by the interest which he had in other cases, or which he had heretofore had in other cases. Upon these answers the appellant challenged the juror for cause, upon the ground that it appeared he would not and could not be a fair and impartial juror. The objection to the juror was overruled by the court, and his name left on the list furnished to the parties for peremptory challenge. Branche was thereafter challenged peremptorily by the appellant. The appellant complains that when the court overruled its challenge of Branche it was forced to challenge him peremptorily and to accept other jurors who were unsatisfactory to it. The court thus qualifies the appellant's bill:
"While it is true that defendant exhausted its peremptory challenges, no statement was made that defendant desired to challenge other jurors, or that it was forced to take any juror that was objectionable to it. Nothing of this kind was called to the attention of the court. The challenge to the juror Branche was passed on when made during voir dire examination of jurors by counsel."
The juror was not disqualified, unless it can be said that his answers conclusively show that he was biased in favor of the plaintiff in the suit. While his statements regarding his business are such as to show probable bias in favor of plaintiffs generally in damage suits against railroads, we are not prepared to say that his further statements that he was unbiased in this controversy should have been disregarded by the court. Ellis v. Brooks, 101 Tex. 591, 102 S.W. 94, 103 S.W. 1196. The record does not show that the juror was interested in any suit against the appellant.
The assignment objecting to the charge of the court on the measure of damages, upon the ground that it permitted a recovery for conditions not pleaded, is not sustained by the record. The charge did not exceed the limits of the facts alleged.
We think the evidence, though conflicting, is sufficient to support the verdict, both as to the fact of injury and its extent.
The judgment will be affirmed.