
    FORT WORTH & D. C. RY. CO. v. HOUSTON.
    (No. 3040.)
    (Supreme Court of Texas.
    Oct. 26. 1921.)
    1. Railroads <§=53 90 — Discovered peril doctrine stated.
    One who seeks to recover under the law of discovered peril for injuries at a crossing must show that the railroad’s servants, after discovering the peril, could, by the use of proper care, have stopped the engine and avoided the injury.
    2. Trial (g=»234(4) — Instruction on discovered peril in conjunction with other elements held erroneous as misleading and imposing too great burden on defendant.
    In a pedestrian’s action for injuries at a crossing involving the issues of negligence in operating a locomotive without ringing the bell and blowing the whistle, and the issues of contributory negligence and discovered peril, a charge presenting the issues conjointly, so as to require a finding for defendant on all the issues, including a finding that its servants, after discovering the peril, could not have stopped in time, before it would be entitled to a verdict, followed by a charge that defendant had the burden of proving contributory negligence, held erroneous as misleading and imposing too great burden on defendant as to the issue of discovered peril.
    3. Appeal and error cg=n230 — Error in instruction not considered where not included, in objections to charge in time and manner-required.
    Alleged error in an instruction cannot be considered where appellant failed to include it in its objections to the charge in the time and manner required. '
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by Hettie Houston against the Fort Worth & Denver City Railway Company. From a judgment affirming a judgment for plaintiff (185 S. W. 919), defendant brings error.
    Reversed and remanded.
    Car'rigan, Montgomery & Britain, of Wichita Falls, F. S. Jones, of Houston, and Thompson & Barwise and Geo. Wharton, all of Fort Worth, for plaintiff in error.
    Bonner & Bonner and J. R. Ogle, all of Wichita Falls, for defendant in error.
   PIERSON, J.

Defendant in error, Hettie Houston, instituted this suit for damages for personal injuries received by her in a collision with one of plaintiff in error’s locomotives. She alleged that, while attempting to cross plaintiff in error’s railway track, near a public crossing in the city of Wichita Falls, plaintiff in error’s servants and employees, operating a locomotive engine, suddenly and silently approached, while it was dark, without blowing the whistle or ringing the bell, and without having the engine lighted so as to give warning of its approach. She alleged also that, after plaintiff in error’s servants in charge of its engine discovered that she was in a place of imminent danger, they could have stopped said engine in time to have avoided injuring her, but that they negligently failed to do so, and were guilty of negligence in failing to exercise care to warn her of the approaching engine. Plaintiff in error denied the allegations of negligence charged and that its servants could have stopped the engine in time to have avoided striking defendant in error, and specially pleaded contributory negligence on the part of defendant in error. A trial was had before a jury, who returned a verdict in favor of defendant in error', and assessed her damages in the sum of $300.

Plaintiff in error perfected its appeal to the honorable Court of Civil Appeals for the Second Supreme Judicial District, and upon an affirmance of the case by that court brings the case here upon writ of error.

The issue of contributory negligence was vigorously presented in the testimony, as was also that plaintiff in error’s employees in charge of its engine after discovering defendant in error’s peril could not have stopped the engine in time to have avoided striking her.

In paragraph 4 of its charge the trial court undertook to charge the elements of liability necessary to defendant in error’s recovery, and upon which the burden of proof was upon defendant in error. Plaintiff in error objected to said paragraph, and here presents as a ground of error .that, under the facts of this case, said paragraph omitted an element of liability necessary to be established before it could be held liable, in that said paragraph failed to instruct the jury that, before they could find for defendant in error under the law of discovered peril, regardless of contributory negligence on her part, they must find that its employees in charge of its engine, after discovering defendant in error’s peril, by the use of proper care could have stopped the engine in time to have avoided striking her, and that said paragraph, together with subsequent instructions, placed a greater burden upon it than is required by law.

Paragraph 4 of the court’s charge is as follows:

“Now if you find and believe from the evidence in this case that plaintiff was walking alongside of defendant’s track, or was attempting to cross the same, and if you further believe from the evidence that the agents, servants, or employees of defendant company in charge of the engine did not blow the whistle or ring the bell as provided by law, and if you further find from the evidence that plaintiff was not negligent in walking alongside of said track, or in attempting to cross the same, or, if negligent, yet if you are satisfied from the eviden.ee that, after plaintiff was discovered on the track, defendant’s servants in charge of the engine negligently failed to use such care and attention, skill and effort to stop or check up the train and avoid collision with the plaintiff as they reasonably shoúld have done after it reasonably became apparent to them that plaintiff would not get off of or away from said track, and if plaintiff received injuries through the fault and negligence of such agents and servants of the defendant company in charge of said engine, then, if you so believe, you will find for the plaintiff such an amount as you may find from the evidence she is entitled to, unless you should find for the defendant under other instructions hereinafter given you.”

Paragraph 5 defines contributory negligence. Paragraph 6 is as follows:

“Now, if you find and believe from the evidence that Hettie Houston, the plaintiff, was walking alongside of defendant’s track, or was attempting to cross the same, and did not use her eyes and ears in such a way as a person of ordinary sense and discretion should have done, and if you further fifid from the evidence that the bell was rung or the whistle blown, and if you further find and believe from the evidence that defendant’s servants in charge of said engine did not have any reasonable grounds to believe that plaintiff would not get off or away from the track in time to avoid being run against, and if you further find and believe from the evidence that at the time the servants and agents of the defendant company first discovered plaintiff on or near said track they could not, by the use of all reasonable skill, care, and effort at hand, have stopped said engine, consistent with the safety of defendant’s property and the train crew, and avoid running against her, after it became manifest that she did not intend to get off or away from said track, then you will find for the defendant.”

Paragraphs 8 and 9 charge the burden of proof as follows:

Paragraph 8: “The burden of proof rests upon the plaintiff to establish by a preponderance of the evidence that the whistle was not blown or the bell rung as charged above, and the damages, if any, that were sustained by her.”
Paragraph 9: “The burden of proof rests upon the defendant to establish by a preponderance of the evidence that plaintiff was guilty of contributory negligence.”

Before the defendant in error can recover of plaintiff in error in this case under the law of discovered peril, she must show that after the discovery of the peril by plaintiff in error’s servants' they could, by the use of proper care, have stopped the engine and avoided the injury. M., K. & T. Ry. Co. of Texas v. Eyer, 96 Tex. 72, 70 S. W. 529: M., K. & T. Ry. Co. of Texas v. James, 55 Tex. Civ. App. 588, 120 S. W. 269.

Defendant in error insists that the omission is cured and the error corrected in paragraph 6 of the court’s ^charge. But paragraph 6 is quite as erroneous as paragraph 4. An examination of it discloses that the different elements of liability are conjointly presented to the jury. In other words, all the issues named therein must be found in plaintiff in error’s favor before it would be entitled to a verdict in its favor under said charge.

Aside from the issues of negligence made by defendant in error in regard to the ringing of the bell, the blowing of the whistle, or in not having the headlight burning, and aside from any contributory negligence on the part of the defendant in error, she pleaded and urged that, even if plaintiff in error was not liable for her injuries upon these issues, and though she should be found guilty of contributory negligence, yet that plaintiff in error’s servants, in charge of its engine, discovered her peril in time to have stopped the engine and to have avoided striking her.

■Plaintiff in error was entitled to have a finding by the jury upon these issues separately and disjointly, and upon the issue of discovered peril separate and apart from the other issues. In fact, the issue of discovered peril arises not in conjunction with, but apart from, these other issues, and plaintiff in error would not be liable thereunder unless its servants discovered defendant in error’s peril, and in time, by the use of proper care, to have stopped the engine and avoided striking her.

The error in paragraph 6 is apparent, and of itself necessitates a reversal of the judgment, because it imposes too great a burden .upon plaintiff ih error. To be sure p&ra-graph 6 does tell the jury that, if they find and believe from the evidence that plaintiff in error’s servants, after discovering defendant in error’s peril, could not have stopped the engine in time to have avoided striking her, to find for the plaintiff in error. But, as stated above, it is given in conjunction with other elements of liability, and with the ! charge upon contributory negligence of defendant in error, and was followed by charges on the burden of proof, charging the burden to be upon plaintiff in error as to contributory negligence. The jury very reasonably could have believed, and doubtless. did, that, along with the contributory negligence of the defendant in error, the burden of proof of which was upon plaintiff in error, it must also prove, and the burden was upon it to prove, that its servants could not have stopped the engine in time to have avoided the collision, before they could find for it.

The charges on burden of proof in paragraphs 8 and 9 of the charge do not lessen, but increase, this probability, and we think that the charge taken as a whole is confusing and misleading, and places too great a burden upon plaintiff in error.

Further complaint is made of paragraph 4 of the court’s charge, wherein it charges:

“Yet if you are satisfied from the evidence that, after plaintiff was discovered on the track, defendant’s servants in charge of the engine negligently failed to use such' care and attention, skill and effort to stop or check up the train and avoid collision with the plaintiff as they reasonably should have done,” etc., to find for plaintiff

■ — the complaint being that that part of the charge limited the jury and instructed them that the employees of plaintiff in error had to do specific things in order to avoid striking defendant in error, and did not apply the correct rule of law thereto, and ignored the efforts by the plaintiff in error’s fireman wherein he hallooed and attempted to warn defendant in error of the approaching engine. M., K. & T. Ry. Co. of Texas v. Reynolds, 103 Tex. 31, 122 S. W. 531.

Plaintiff in error failed to include this ground of error in its objections to the .charge of the trial court in the time and manner required by law, and therefore it cannot be considered. We do not deem it necessary to discuss other assignments.

For the errors indicated, the judgment of the district court and that of the Court of Civil Appeals are reversed', and the cause is remanded. 
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