
    MISSOURI, K. & T. RY. CO. v. WALLACE.
    (No. 1308.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 30, 1914.
    Rehearing Denied May 21, 1914.)
    1. Masteb and Servant (§ 286) — Actions foe Injuries — Questions for Juey.
    In an action for injuries to the fireman of a passenger train, sustained in a collision with the caboose of a freight train, evidence heM to make a question for the jury as to whether the freight train employés were guilty of negligence proximately causing the injury in failing to post and put out a flag at a sufficient distance to give a sufficient warning to the passenger train.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1000, 1008, 1010-1016, 1017-1033, 1036-1042, 1044, 1040-1050; Dec. Dig. § 286.]
    2. Masteb and Sebvant (§ 293) — Actions FOE INJURIES — INSTRUCTIONS.
    In an action for injuries to the fireman of a passenger train, sustained in a collision with the caboose of a freight train, where the only acts ■ of negligence alleged were the failure of the freight train’s crew to side-track the train 10 minutes before the passenger train was due or, failing in that, to send back a flagman a sufficient distance to stop the passenger train before it could run into the caboose, which had broken loose from the freight train, and the only evidence offered by plaintiff as to negligence referred to these acts, an instruction that if the employés in charge of the freight train were guilty of “negligence,” as that term had been defined, in causing the two trains to run together, and if such negligence was the proximate cause of plaintiff’s injury, the jury should find for plaintiff, was not so erroneous as to require a reversal, though it did not expressly state the particular acts that might be considered by the jury as negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1148-1166, 1158-1166; Dec. Dig. § 293.]
    3. 'Trial (§ 296) — Instructions—Errors— Cure.
    An instruction, in an action for injuries to the fireman of a passenger train, that if the employés in charge of a freight train were negligent in causing the two trains to run together, the jury should find for plaintiff, if erroneous as failing to state the acts of the freight train’s crew that might be considered as negligence, was not ground for reversal, where the special charges for both parties confined and defined the particular acts of negligence upon which the jury could make a finding.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by J. A. Wallace against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Appellant’s fast passenger train, known as the “Limited,” collided with the rear end of á regular freight train on the main line. Just before the collision, and about a car length before the passenger engine reached the ’ rear of the freight train, the appellee, Wallace, who was the fireman of the.passenger engine, in order to escape the danger of being caught under the engine in case of the wreck of the engine, jumped off the engine to the ground and sustained grievous bodily injuries, for which he sues. The negligence alleged in the petition is; (1) Failure on the part of the operatives of the freight train to observe the rules of the company to sidetrack the freight train 10 minutes before the fast passenger train following it was due, and, failing in that, to post and put out a flag to notify the operatives of the passenger train that the freight train was on the main line and not on the side track in the clear, and to enable the passenger train to stop in time to avert a collision; and (2) failure on the part of the employés of the passenger train to approach the station with the speed of the train reduced and under control, and in failing td keep necessary and proper lookout for flags and for the freight train. The defendant pleaded denial, contributory negligence, and assumed, risk. The verdict of the jury was in favor of the plaintiff.
    
       The evidence establishes that the passenger train on which appellee was the locomotive fireman was a fast train, known as the “Limited,” running north bound at the time, from Muskogee, Okl., with destination of Parsons, Kan., and was moving at the usual high rate of speed of from 40 to 60 miles an hour. Hulwe is a station on the railway between Muskogee and Parsons, and switches and passing tracks are maintained there; but it is not a station at which the Limited train stops. One mile south of Hulwe the railway crosses Big Cabin creek. The track south of Big Cabin creek is curved and is downgrade, going north to where it crosses the creek, and is upgrade from the creek to Hulwe Station. As the passenger train was approaching Hulwe, and at a point about one mile south of Hulwe, and just after the engine crossed over the creek, the engine of the passenger train ran into the caboose of a regular freight train which had previously broken loose from thé train line. The freight train was also north bound. It appears that the freight train of between 30 and 35 cars arrived at Hulwe Station about 17 minutes ahead of the passenger train, and when it slowed down for the switch the slack of the train running back caused the caboose to' break loose and roll slowly back downgrade to the creek. The conductor and a brakeman of the freight train went back to flag the passenger train. The conductor says he went back eight telegraph poles, and the brakeman, according to the evidence, went forward of the caboose about 100 yards. It was proven that rule 99 of appellant, set out in detail in the statement of facts, requires the flagman, in case of accident or obstruction of the track,, to go back with danger signals and remain at a point 20 telegraph poles, or 1,000 feet, from the rear of his train, or, when on a curve or downgrade, a distance of 20 telegraph poles further than above provided, to give approaching trains ample time to stop. There was testimony that the flagman had 13 minutes’ time in which to put out a flag before the collision occurred, and that a flagman in such time could have gone down the track the distance of 25 telegraph poles, and if he had done so in this case the engineer of the passenger train could and would have seen him and would have had time to stop the train before it struck the caboose. As the passenger train was rounding the curve just south of the bridge over Big Cabin creek, the engineer discovered the front flagman, and at once answered by two short blasts of the whistle and applied the air brakes in the emergency; but, before the train could be stopped, the collision inevitably occurred. The collision was forcible, and wrecked the caboose and damaged the engine.
    The evidence warrants the findings of fact, which are here made, that appellant through its employés was guilty of negligence proximately causing the injury in failing to post and put out a flag at proper and sufficient distance to give the approaching passenger train warning in time to avert the injury, as pleaded, and that appellee was not guilty of contributory negligence, and did not as a fact assume the risk of injury; and the amount of damages awarded by the jury is warranted by the evidence.
    Head, Smith, Maxey & Head, of Sherman, and Alex. S'. Coke, of Dallas, for appellant. Wolfe, Wood & Haven, of Sherman, for ap-pellee.
    
      
      For other cases see same topic and section NUMB15R in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-
    
   LEVY, J.

(after stating the facts as above).

The first assignment predicates error upon that part of the fourth paragraph of the court’s charge reading:

“And if you believe from the evidence that defendant’s employés in charge of said freight train were guilty of ‘negligence,’ as that term has been defined to you, in causing said two trains to run together, if they did, and that such negligence, if any, was the direct and proximate cause of plaintiff’s injury, if any, * * * you will find for plaintiff and assess his damages as hereinafter instructed, unless you find for defendant under other instructions given you.”

The objection made to the charge is that it does not refer the jury to the negligent acts alleged or the facts proven, but leaves it broadly for the jury to say whether or not negligence caused the collision. The charge does not, it is true, expressly state to the jury the particular acts on the part of "the freight crew that may be considered by them as negligently causing the collision. The charge, though,' does refer and restrict the jury to the evidence before them to determine the question of negligence on the part of the freight crew in‘respect to the collision. According to the pleading of the plaintiff, the only two acts of negligence charged against the freight crew was the failure to side-track the freight train, as required by appellant’s rule, 10 minutes before the passenger train following it was due, and, failing in that, to send back a flagman a distance far enough to stop the passenger train before it could run into the caboose broken loose from the train line of the freight train. And the only evidence offered by the plaintiff as to negligence on the part of the freight crew was in reference to the alleged acts. In view of the pleading and evidence, the charge could not properly be said, we think, to be so erroneous as to require a reversal of the case. And, further, if the court’s charge is subject to the objection of being general in respect to the issue of negligence on the part of the freight crew, it would not afford ground for reversal, for the special charges of appellee, together with the special charge of appellant, given by the court, as showii in the record, served to confine, as well as define, the particular acts of negligence that the jury could and would make the finding upon. The assignment is overruled.

The second assignment eomplains of special charge No. 2, tendered by appellee and given by the court. The special charge authorized a verdict for appellee upon the finding by the jury that the flagman sent out in this case for the purpose of flagging and signaling the operatives of the passenger engine negligently failed or refused to go back the necessary or proper distance to give the approaching passenger train ample time to stop and avoid the collision. The objection to the charge is that it measures appellant’s liability by a failure to comply with its rules formulated for conducting its business. The charge, we think, required the jury to measure the act of the flagman entirely from the standpoint of being negligence vel non, and is not subject to the objection made.

There was no error in refusing to peremptorily instruct a verdict for appellant under the evidence in this case, and the assignments numbered 3 and 4 are overruled.

Assignments Nos. 5, 6, and 7 present no error affording ground for reversal, and are overruled.

It is a fair deduction from the evidence, that the jury were authorized to make, that appellee will never be able to perform the labor of a fireman in the future, and will never have the strength in his right arm that he once had. After a careful consideration of the case, we do not feel warranted in disturbing the verdict of the jury on the amount of damages awarded. Assignment No. 8 complaining of excessive verdict, is overruled.

The judgment is affirmed.  