East Line & Red River R'y Co. v. Smith

Citations

• 65 Tex. 167
• 1885 Tex. LEXIS 331

Syllabus

<p>1. Carriers—Negligence—-Charge.—In a suit against a railroad to recover damages for injuries sustained in an accident, the petition alleged that the wreck was caused, among other things, by the agents of the road putting into the train two large and dangerous box-cars, built for a road of four feet eight inches gauge, whereas defendant’s track was only three feet. There was evidence tending to sustain this averment, an.d in its charge the court instructed the jury that if the wreck was caused by the placing of broad-gauge cars on a narrow-gauge track, or, etc., as alleged, defendant was liable. Held:</p> <p>(1) That the charge must be taken as a whole in order to determine whether or not it was erroneous or misleading, and it must be construed in the light of the issues made by the pleading and evidence.</p> <p>(2) If the facts stated in the petition in reference to the defects in the cars and their use and the fact that the wreck was caused thereby, were admitted, the court might have declared their use negligence.</p> <p>(3) It was left to the jury whether or not those facts existed, and whether or not defendant knew, or should have known, of them. The use of the car, with a knowledge of its defect, was inconsistent with the degree of care required of passenger carriers, and the court might so instruct.</p> <p>(4) Ordinarily the court should inform the jury what the issues to be tried are, rather than to refer them to the pleadings; but a reference to the pleadings, not bearing upon the weight or character of evidence necessary to be adduced to sustain the issues, but merely stating that if the car was put in the train in the unfit and defective condition alleged, etc., the carrier would be liable, was not error.</p> <p>(5) The question is, is there reason to believe that the jury were misled by the charge? Since the entire charge made the negligence of the carrier the sole ground on which plaintiff could recover, and it is improbable that the jury felt authori