Texas & Pacific R'y Co. v. Frank Mallon, 65 Tex. 115

Robertson, Associate Justice. The first assignment of error complains of the action of the court in overruling appellant’s motion for a contimiance. The order of the court overruling this motion was entered in the minutes, and the exception is there noted. This minute of the proceedings in the court below did not make the application for continuance a part of the record. Under rule 55, the action of the court upon motions for continuance can be revised here only when exception is reserved and presented in a proper bill.

As no such exception was taken in this case, this assignment of error presents nothing to be considered by this court. - The second, third and fourth assignments, question the correctness of the court’s charge to the jury.

The part of the charge specified is in the following language: “But, if the collision took place after one o’clock and twenty minutes, and number nine was running without flagging its train, then the plaintiff is entitled to recover, provided he makes proof to your satisfaction of those facts, which in a former part of these instructions you have been informed he must prove to entitle him to recover at all.” The plaintiff was fireman on train Ho. 10, which was not authorized to leave Hallville, on its eastward journey, until twenty minutes after one o’clock on the morning of December 6, 1881.

The westbound train, Ho. 9, was due at Hallville at fifteen minutes after one o’clock on the same morning. On that morning the two trains collided about one mile, or one mile and a half, east of Hallville, and there the plaintiff received his injury. Defendant’s rules required Ho. 9, if it was not on time, to send a flagman ahead nine hundred yards, and travel slowly to prevent collisions. The east-bound trains had the right to the track, and hence this caution was required of Ho. 9, which, was bound west. These were undisputed facts.

From them it necessarily follows that if the collision occurred after Ho. 9 was due at Hallville, Ho. 9 ought to have had out the flagman. If the failure to have out the flagman was the cause of the accident, and the unfitness of the conductor and engineer on Ho. 10 caused this failure, and their unfitness was unknown to the plaintiff, and was known, or would, by the use of reasonable care, have been known to the defendant, then the defendant was liable. This is precisely the-theory presented in the charge of the court below.

It was proven by the defendant that if Ho. 9 was late it should have sent out the flagman for the very purpose of preventing a collision. The rules of defendant required this duty of Ho. 9. To charge that a breach of that admitted duty was negligence was not a charge on the weight of evidence. But it is claimed that the liability of defendant ought to have been made to depend upon the time when Ho. 10 left Hallville. In the theory presented by the court below in the charge, the defendant was liable if the accident resulted from the failure of No. 9 to send out the flagman.

If No. 10 did leave Hallville earlier than it ought, yet the collision occurred after No. 9 ought to have had out the flagmau, and as a result of the failure of No. 9 to do this, the premature departure of No. 10 cannot be said to have proximately contributed to the collision, which occurred after No. 10 ought to have been on the track, and after the duty of caution against the collision was shifted, under the rules of the service, upon those having in charge train No. 9. The charge, as a whole, fairly presented the case to the jury, and their finding is well sustained by the evidence.

The fifth assignment of error is that “the court erred in refusing to give the several special charges asked for by the defendant.” Four special charges were requested and refused, and it has already been held several times at this term that such an assignment of error is not in accordance with law and will not be considered. The last assignment of error, the sixth, is that the court erred in not granting defendant’s motion for new trial. This assignment has not been considered, as it is manifestly too general. There is no error in the judgment and it is therefore affirmed.

Affirmed. [Opinion delivered November 13, 1885.]