
    PANHANDLE & S. F. RY. CO. v. HUCKABEE et ux.
    (No. 1562.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 5, 1919.
    Rehearing Denied Dec. 10, 1919.)
    1. Railroads <&wkey;303(l) — Defect in crossing CAUSING INJURY TO DRIVER.
    A railroad company failing to use ordinary care in maintaining a public crossing in repair is liable for injuries to a driver thrown from a wagon by the bad condition of the track without negligence on his part.
    2. Railroads <&wkey;>351(5) — Instructions as to DUTY TO MAINTAIN CROSSING.
    Instruction in language of Rev. St. 1911, art. 6485, providing that a “railroad shall keep such crossing in repair,” with an instruction that railroad was required to use ordinary care to maintain crossing, did not impose an absolute duty on the railroad.
    3. Trial <&wkey;-129 — Argument of counsel in REPLY TO OPPOSING ATTORNEY’S IMPROPER . ARGUMENT.
    The rule that it is reversible error to permit an attorney to advise a jury what the legal effect of their answer to an issue would be is subject to the exception that a party, whose counsel improperly pursues a line of argument not called for by the facts, will not be heard to complain of reply of adverse party’s counsel thereto.
    4. Appeal and error <&wkey;882(17) — Estoppel BY REQUESTING SUBMISSION OF ISSUE.
    A party who requests jury to make finding on certain question will be estopped from asserting there was error in submitting the issue because there was no evidence authorizing its submission.
    5. Trial <&wkey;129 — Reply to improper argument OF COUNSEL.
    In parents’ action, for son’s death, where defendant’s counsel, after submitting issue of number of years son would have continued to-contribute to parents’ support and requesting jury to consider evidence thereon, stated in argument to jury that their only answer thereto could be, “We don’t know,” parents’ counsel had the right to tell jury to make answer some number of years or none, and that answer of, “We don’t know,” would have caused mistrial; such argument being in reply to improper arguments of defendant’s counsel.
    6. Death &wkey;>99(l) — Damages to parents for son’s death not excessive.
    Verdict of $1,750 given parents for death of son who at time 'of death was contributing $250 per year to support of parents over and above expenses they were out on him, and in all reasonable probability would have continued to do so for next seven years, held, not excessive. '
    7. Death <&wkey;95(l) — Amount of damages jury question.
    The amount of damages for deatii rests largely in the judgment of the jury, based on facts of the particular case.
    8.Trial <&wkey;355(2) — Answer to special issues.
    Where each special issue was divided by letter into several questions, jury’s answer numbered to correspond with number of issue, and not by the divisions as lettered, held sufficiently intelligible for rendition of judgment.
    Appeal from District Court, Eloyd County; R. C. Joiner, Judge.
    Suit by W. A. Huckabee and wife against the Panhandle & Santa Eé Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    W. C. Reid, of Albuquerque, N. M., and Madden, Trulove, Ryburn & Pipkin and F. A. Cooper, all of Amarillo, for appellant.
    T. F. Houghton, of Eloydada, for appellees.
   HUFF, C. J. W. A.

Huckabee and wife,, appellees, sued the appellant railway company for damages occasioned by the death of their son, J. W. Huckabee, through the alleged negligence of the appellant in failing to keep and maintain its road crossing on Virginia street, in the town of Floyd City,, in good condition, and in permitting its ties and rails to rise above the level of the. roadway some four or five inches, and negligently allowing the track so to remain. It is alleged the deceased, the son of appellees, was-crossing the appellant railway at the street crossing above mentioned with a wagon load of lumber, and that the wheels of his wagon struck the track, and from the jar and fall of the wagon on and from the rails caused part of the load to fall, throwing the deceased to the ground and inflicting injuries-from which he died. This case was reversed by this court on a former appeal. 207 S. W. 329.

The first assignment asserts error in-refusing the request to instruct a verdict for appellant. We conclude the facts and circumstances of this case are sufficient to authorize the finding that the crossing on the street at the time of the injury was out of repair and dangerous, as alleged, and that such street was dedicated to the use of the public as a thoroughfare; that it was the-duty of appellant to maintain it in repair; that it did not do so; and that in such failure it did not use ordinary care. The condition of the crossing at the time of the injury was owing to the negligence of appellant in failing to maintain the crossing in-repair and was the proximate cause of the injury and death of the deceased. The deceased used ordinary care in loading his lumber on the wagon and in driving across the railway track. His team was not wild or unruly; the lumber did not fall or commence to fall before the wagon reached the track. The load of lumber was caused to fall by the bad condition of the track, there•by causing the deceased to fall to the ground. This fall was not caused from the fright of the team before reaching the track. The deceased was not guilty of contributory negligence, and there is sufficient evidence to support the finding of the jury to that effect. Under the findings of facts by the jury, the railway is liable for such injuries. Ry. Co. v. Butcher, 81 S. W. 819.

By the second assignment, appellant insists that the trial court, by its charge on the issues submitted, placed too great a burden •on it as to keeping the crossing in repair, by instructing that it was an absolute duty imposed upon appellant. Under this assignment appellant presents the proposition .that in maintaining .the crossing appellant was only required to use ordinary care. The charge given, of which complaint is here made, is as follows:

“You are instructed that the railway company in this case had a right to construct its road across the street at the point where it was constructed, but it was the duty of said •company to restore said street thus intersected to its former state, or to such state as not to unnecessarily impair its usefulness, and to keep such crossing in repair.”

The issue submitted, of which complaint is made, is as follows:

“After #the construction of said track and the crossing on said street, did said company keep and have same in repair on the 23d day of February, 1917” — which was the- date of the injury ?

The jury answered this issue in the negative. The trial court, in addition to the above charge, also defined “negligence” and “ordinary care,” giving approved definitions.' He also submitted an issue as to whether, after the construction of its road, the appellant restored the street to its former state, etc. The jury answered that issue in the affirmative. The court submitted special issue No. 3, which is as follows:

“As the term ‘negligence’ has been defined to you, state whether or not the defendant company, in the construction and maintenance of the track and crossing, across the street in question, was guilty of negligence.”

The jury answered this issue in the affirmative. And by the fourth issue they were asked to state if such negligence, if any, was the proximate cause of the injury, as “proximate cause” had theretofore been defined by the charge. This issue was answered in the affirmative. The jury were required to find if appellant had kept the crossing in repair on the day of the injury. They were also required to find, and did find, that in the maintenance of the crossing appellant was negligent, and that such negligence was the proximate cause of the injury. These two findings were sufficient to support the judgment.

We think, when the entire charge is considered, the jury were instructed the appellant was only required to use ordinary care to maintain the crossing. The charge, of which complaint is made, is in the language of the statute. Article 6485, R. C. S. This statute imposed the duty upon the railroad to keep the crossing in repair. The mere fact that the court instructed the jury it was a duty on appellant to maintain the crossing did not instruct liability. The statute imposed the duty relative to the crossing. The court in effect instructed the jury that liability could only be established by the failure to use ordinary care to perform the duty of maintaining the crossing. And the jury, in answer to the issue, so found. It appears to be the holding of some of the courts:

“Where a railroad is constructed across a public road or highway [or street], already established, the duty of the railway company, under the statute, to keep the crossing in repair, is absolute.” Ry. Co. v. Smith, 49 Tex. Civ. App. 1, 107 S. W. 638; Railway Co. v. Randall, 51 Tex. Civ. App. 249, 113 S. W. 181; Ry. Co. v. Haddox, 36 Tex. Civ. App. 385, 81 S. W. 1036; Railway Co. v. Gillenwater, 146 S. W. 589; Railway Co. v. Williams, 175 S. W. 486; Horton v. Railway Co., 171 S. W. 1023; Railway Co. v. Sherer, 183 S. W. 408 (11).

The appellant cites the cases of Stephenson v. Railway Co., 164 S. W. 1125; Railway Co. v. Johnson, 38 Tex. Civ. App. 322, 85 S. W. 476; Railway Co. v. Belt, 24 Tex. Civ. App. 281, 59 S. W. 607. The first case discussed the rule as to a crossing not on a public highway; and holds in such case the railway is only held to the exercise of ordinary care in relation thereto. The last two cases, however, appear to hold that it is an absolute duty to restore the crossing disturbed, but in maintaining the crossing it is only required to use reasonable or ordinary care. It is unnecessary for us to determine which rule we will follow in this case, as we think the trial court followed appellant’s contention and construction of the statute as is manifest from the entire charge as above indicated by us. ■ This assignment will be overruled.

The third assignment is based on the remarks of the appellees’ counsel in argument to the jury and the action of the court ,in permitting such remarks and the refusal to instruct the jury not to consider them. The bill recites:

“While the plaintiffs’ counsel was making his closing argument to the jury in connection with the defendant’s requested special issue No. 8, as submitted by the court to the jury in his charge, counsel for plaintiffs stated to the jury-that in answering said special issues they should make it some number of years or none, which would make it final, and that if the jury answered it did not know it would cause a mistrial.”

It is further recited in the bill:

“In connection with such statement to the jury, plaintiff states that it was in answer to defendant’s argument to the jury where, after reviewing the evidence on that issue, defendant’s counsel had stated to the jury that under the evidence before them the only answer the jury, could make to said special issue was, ‘We do not know.’ ”

The objection to the argument and request to instruct the jury to disregard it were overruled. Appellant requested the trial court to submit special issue No. 8, which the court did. The issue requested and given is as follows:

“How long under all the facts presented to you in the evidence before you would the deceased, Wesley Huckabee, have reasonably been expected to have remained with the plaintiffs and contributed his labor» and earnings to their support?”

The jury answered: “Seven years.”

It is asserted in a proposition that it is reversible error to permit an attorney to advise a jury what the legal effect of their answer.to an issue would be. This we understand to be the rule; but there is another one, or an exception, to the rulé, to the effect if counsel for one party pursues a line of argument not called for by the facts of the case, and if it is improper, he ought not to be heard to complain of the reply, and in such case appellate courts will not reverse a judgment upon an assignment based upon such fact. Railway Co. v. Gracia, 62 Tex. 289, 290; Trinity, etc., v. Denham, 88 Tex. 203, 30 S. W. 856; Railway Co. v. Perry, 30 S. W. 709; Railway Co. v. Hagen, 188 S. W. 954; Wilson v. Fitch, 208 S. W. 556.

When the appellant requested the jury to find how long the deceased would have been reasonably expected to contribute to appellees’ support, it assumed there was evidence from which the jury could find the length of time such support would be given. The appellant would have been estopped from asserting there was error in submitting the issue because there was no evidence authorizing its issue. Appellant was inconsistent to argue to the jury there was no evidence upon which they could base an answer to the issue which it had submitted after requesting them- to consider such evidence on the issue, and he should not have told them they could only answer, “We don’t know.”

Now appellee certainly had the right to advise the jury they could answer “some number of years, or none.” It is evident that counsel for appellees believed it was the purpose of appellant to obtain a mistrial by the answer sought in its argument. He was within his rights in requestmg that such result be avoided, and if they found deceased would not have contributed for any number of years to say so, or if he, in all reasonable probability, would have contributed, to answer the number of years. The issue as submitted perhaps 'was not the proper method of obtaining the amount of damages to which appellees might be entitled. The ultimate fact to be established was the damages" the appellees sustained in the death of their son. It is doubtless true the jury could consider the amount he had contributed and would, in all reasonable probability, have contributed in the future, in arriving at the ultimate facts sought. Appellant sought an answer to an issue on evidence to be considered .in arriving at the ultimate fact sought, assuming there was evidence by which such issue could be answered, and then argued there was no such evidence and advised in effect a mistrial on that issue. It seems to us that counsel for appellees had the right to •inform the jury, if they followed the advice of opposing counsel, what would be its result. He did not tell them how to answer the issue, but told them what appellant’s request would mean. We do not think under the record appellant ought to be heard to complain.

The fourth assignment is also based on the opening argument of counsel for appellee. If there was any error, we can see no injury. If the facts were as stated,- the argument, it seems to us, was legitimate and a reasonable deduction from the evidence.

The fifth assignment assails the verdict as being excessive. The jury found that the deceased contributed $250 to appellees’ support per year at the time of his death, over, and above expenses they were out on him, and in all reasonable probability he would do so for the next seven years. The judgment rendered was for $1,750. We are not prepared to say the verdict is excessive, and do not feel justified in requiring a re-mittitur. We did suggest on the former trial that the judgment then rendered for $3,500 under the facts was excessive. There is no mathematical rule for fixing the amount in cases of this kind, and under the evidence becomes a question for the jury and rests' largely in the judgment of the jury, based upon the facts of the particular case.

The sixth assignment is also overruled.

The seventh assignment objects to the judgment because it is asserted the jury failed fully to answer the special issues requested by appellant, which were submitted. There appears to have been seven special is-, sues submitted, as requested by appellant. To illustrate the point made to the issue submitted and the answer of the jury, we give the first issue and the answer of the jury, as made:

“Defendant’s specially requested issue No. 1: (a) Was the deceased, J. W. Huckabee, nog-ligent in failing to provide a stronger standard and support for the load of lumber in question? (b) Did such negligence on the part of deceased contribute to the injuries resulting in bis death?”

The jury answered No. 1, “No.” So on through the entire seven issues they were so divided by letters, submitting several grounds of .alleged contributory negligence, and in each instance the jury numbered their answer to correspond with the number of the issue and answered the issue by number, and not by the divisions as lettered. We think the answers are sufficiently intelligible .upon which a judgment could be rendered. The answer to each of the issues is not uncertain.

The eighth and ninth assignments are overruled for the reasons given under the first assignment.

The judgment of the trial court is, affirmed. . 
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