
    MISSOURI, K. & T. RY. CO. OF TEXAS v. SMITH et al.
    (Court of Civil Appeals of Texas.
    Jan. 5, 1911.)
    1. Trial (§ 191) — Instructions—'Weight of Evidence — Assuming Fa’cts.
    In an action for the death of a railroad employs caused by being struck by a lump of coal falling from the tender of a passing train, an instruction that if the defendant in loading the coal on the tender, or in maintaining the track at the place where the injury occurred, or in running the train at too great a speed, or in providing an insufficient number of men to kéep the track in the section where the injury occurred, if it did occur, in good condition, failed to exercise ordinary care, etc., defendant was liable, is on the weight of evidence as assuming that the train was being run at too great a speed, and that an insufficient number of sectionmen were provided to maintain the track of the section.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431; Dec. Dig. § 191.]
    2. Master and Servant (§ 129) — Injuries to Servant — Proximate Cause.
    Where any negligence of a railroad company in providing an insufficient number of men to keep the track in condition was merely a remote incident, and not the proximate cause of injury to decedent, who was struck by a lump of coal falling from the tender of a passing train, such negligence is not ground for recovery.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.]
    3. Master and Servant (§ 285) — Injuries to Servant — Action—Question for Jury.
    In an action for the death of a servant of a railroad by being struck by a lump of coal falling from the tender of a passing train, plaintiffs are entitled to have the jury say whether the efficient cause of the death was the injury in suit, or if the decedent after his injury became affected with some disease, and such disease was directly and proximately caused by or arose as the direct and proximate result of the injury received by being struck by the lump of coal.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1002-1008, 1035, 1043, 1053; Dec. Dig. § 285.]
    
      4. Master and Servant (§ 291) — Injuries to Servant — Actions—Instructions.
    In an action for death of a railroad employe by being struck by a lump of coal falling from the tender of a passing train, the defendant is entitled to have affirmatively presented to the jury its contention that the decedent did not receive the injury in question, but died solely from disease arising from natural causes.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 1133-1147; Dec. Dig. § 291.]
    5. Death (§ 17) — Injuries to Servant — Action — Instruction.
    In an action for death of a railroad employe by being struck by a lump of coal from the tender of a passing train, a special charge relieving defendant of liability if the death was due in some manner to the effect of a disease to which the decedent had previously been subject was properly refused, since the defendant is liable if the injury aggravated a pre-existing tendency to disease in the injured person.
    [Ed. Note. — Por other eases, see Death, Cent. Dig. §| 19, 21; Dec. Dig. § 17.]
    Appeal from District Court, Hopkins County ; R. L. Porter, Judge.
    Action by Mrs. Ella B. Smith and others against the Missouri, Kansas & Texas Railway Company of Texas. Prom a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    James Smith was a section foreman of appellant, and was with his crew at work on the railway track. Smith left his section-men at work and was going westward down the track for the purpose of inspecting the fence on the right of way which had been reported to be out of order. He had gone but a short distance when an east-bound passenger train came along, and he got off the track to a distance of about 12 feet away from the track, and stood there awaiting the passing of the train. It is the contention of appellees that while Smith was standing at this place he was hit in the side and back by a lump of coal weighing between 10 and 12 pounds, falling from the tender of the passing locomotive. The injury thus received, it is claimed, caused his death. It is alleged that the falling of the lump of coal was through the negligence of appellant in the manner of loading the coal on the tender, and in the maintenance of the roadbed and track, and in operating the locomotive at too great a rate of speed.
    B. M. MoMahan, L. L. Wood, and Jno. T. Craddock, for appellant. Templeton, Crosby & Dinsmore and Gammon, Worsham & Pope, for appellees.
    
      
      For otter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   LEVY, J.

(after stating the facts as above). The court charged the jury: “If you believe from the evidence that the defendant in loading the coal on the tender or in maintaining its track at the place where such injury occurred, or in running the train at too great a speed, or in providing an insufficient number of men to keep the track in the section where such injury occurred, if it did occur, in good condition, failed to exercise ordinary care as that term is defined in this charge, and if you believe that such personal injuries to James Smith, if any, resulted in his death and from the failure of the defendant to exercise care in respect to its railway track and running its train and in loading, its tender, as above stated, then and in that event you should find for the plaintiff; but, if you do not so believe, you will find for the defendant.” Appellant contends for error that the charge is upon the weight of evidence. The charge assumes that the train was being run at too great a rate of speed,, and that an insufficient number of section-men were provided to properly maintain the track of that section. These were sharply controverted issues in the case and material grounds of negligence pleaded and relied on. We feel constrained to hold that it was a charge upon weight of evidence and in violation of the statute in such respect. Under repeated decisions, it is held to be reversible error, under the terms of the statute, for the court to charge at all on the weight of evidence. And, besides, it is further contended that it was error to submit as a ground for recovery the failure to furnish a sufficient number of sectionmen to maintain the track of that section. It can he conceded, as claimed by appellees, that appellant owed the duty to its sectionmen at work along the right of way to use the proper care to guard against coal falling from the tender of its moving locomotive and injuring any of them, and because of negligence, if shown, in that regard, and without fault of the injured seetionman, to be liable for such injury proximately resulting to him. And it is obvious that the falling of a lump of coal from the tender of a locomotive in operation could properly be attributable by the jury to improper loading in the tender or negligent operation of the locomotive over the track under the circumstances of the case, if such are shown to be the facts. But, if the appellant did fail to provide a sufficient number of sectionmen to work on the track of that section, it could not be said that the falling of the coal was due to such dereliction. Such dereliction was, it must be said in this case, clearly shown to be merely a remote incident, and not the proximate cause of the present injury. It is fundamental that there can be no recovery unless the particular negligence relied on was the proximate cause of the injury. It was prejudicial error to so charge on this ground.

In view of another trial, it is suggested that a clearer charge on the measure of damages be framed and submitted, and the court can fully and affirmatively present ⅛ the main charge the issue of the cause of the death of deceased, Appellees are entitled to have the jury say whether the efficient cause of the death was the injury in suit, or if Smith after his injury, if any, became affected with some disease, and that such disease was directly and proximately caused by or arose as the direct and proximate result of the injury received in being struck by the lump of coal, if so. And the appellant is entitled to have properly and affirmatively presented its contention in this respect that deceased did not receive the injury in question, and died solely from disease arising from natural causes. The court properly, though, refused special charge No. 8 as appears in the brief. See 1 Thompson on Neg. § 151. It is there laid down that if the negligence of another produces a hurt which aggravates a pre-existing tendency to disease in the injured person the negligence, and not the disease, is deemed in law the proximate cause of the injury. The special charge relieved of liability if the “death was due in some manner to the effects” of the particular disease mentioned. We do not mean to 5e understood as saying or meaning that the appellant was not entitled to have the jury say in an affirmative charge whether the death was solely the natural and proximate result of the particular disease mentioned in the special charge. It may be pure theory, and the evidence slight, that he had this particular disease mentioned in the charge, but there was enough to require the jury to say.

The judgment was ordered reversed, and the cause remanded for another trial.  