Houston and Texas Central Railway Company v. C. S. Gorbett, 49 Tex. 573

Gould, Associate Justice. The charge of the court embodied the law of the case, aud was, we think, free from any material error.

It recognized the well-settled law, that the plaintiff cannot recover if Iris own negligence contributed to produce his injury, and at the same time told the jury, that if there was negligence both on his part and on the part of defendant, “ it is not the least degree of fault on the part of plaintiff that will prevent him from recovering; but it must be such a degree as to amount to a want, of ordinary or reasonable care on his part, under the circumstances, at the time of the injury.” There was nothing in the charge calculated to lead the jury to find for plaintiff" notwithstanding his own want of ordinary care contributed to the injury, on the ground that the negligence of defendant was more gross than his.

The law of contributory negligence was clearly given in the charge, and there was nothing to mislead into the erroneous doctrine of comparative negligence. The charge required the greatest degree of care and prudence of defendant, as being a carrier of passengers, and at the same time held defendant not responsible if the injury was the result of a mere accident or casualty, there being no want of care or skill on the part of the company or its agents.

The defendant was held liable for the act of its brakeman whilst undertaking to direct and assist the plaintiff in getting off the ears, there being no proof that this was outside of his duties, but not for his willful trespass or act done clearly outside the scope of his employment. It is not proposed to discuss the various objections urged to the charge, as our views of the law are sufficiently indicated in what has been said. The charges asked and refused were either embodied in that given, or were objectionable as on the weight of evidence, or on other grounds.

It is claimed that the verdict was clearly wrong, and that the judgment should be reversed, because the court erred in refusing a new trial. The evidence, however, was conflicting, and in such cases the verdict will not ordinarily be disturbed. If the plaintiff’s statements bo taken as true, we cannot say that the verdict was clearly wrong. Certainly, even according to this statement, there was room for the jury to find that he contributed to his injury by Ifis own imprudeuce.

But, under a prior charge, the jnry have found differently, and their verdict not having been set aside hy the court below, and not being clearly wrong, cannot now he disturbed. The judgment is affirmed. Affirmed.