Int'l G. N. R. R. Co. v. Washington

117 S.W. 992, 54 Tex. Civ. App. 166, 1909 Tex. App. LEXIS 168

• Court: Court of Appeals of Texas
• Decided: February 24, 1909
• Status: Published

Opinion

In this case appellee recovered a verdict and judgment against appellant for $250, as damages for an assault made upon him while a passenger by a porter on appellant's train. There was testimony tending to show that the plaintiff made an assault upon the porter with a knife, and that the porter acted in self-defense. On that phase of the case the trial court instructed the jury as follows:

"If you believe from the evidence that the plaintiff assaulted the defendant's said porter, and that said porter in repelling such attack struck the plaintiff and thereby injured him, and that in so doing he exercised that high degree of care to avoid injuring plaintiff hereinbefore charged to have been his duty; in other words, if you believe that he exercised that degree of care in repelling the attack which a very cautious and prudent person would have exercised towards plaintiff under the same or similar circumstances to avoid injuring him, then if you so find you will find for the defendant; but in this connection you are instructed that if you should find that plaintiff did make an assault upon defendant's porter, unless you find that said porter exercised that high degree of care to avoid injuring him in repelling said attack that a very cautious and prudent person would have exercised towards plaintiff under the same or similar circumstances, then you can not find for defendant under this paragraph."

Appellant requested, and the court refused, the following instruction: "If you believe from the evidence that defendant's porter was assaulted by the plaintiff with an open knife in his hand, and that the defendant's porter, in defense of himself and his person, struck the plaintiff with his fist, and that said porter did not use any more force or resistance than was necessary to repel plaintiff's assault, if any, and you believe that — which you may find he did — was necessary to repel said assault, if any, and that a person of ordinary prudence in the exercise of the care mentioned in the court's charge would have done as did defendant's porter in repelling the said assault, if any, you will find for defendant."

But one assignment of error is presented in appellant's brief, and it complains of the refusal of the requested instruction. We think appellant had the right to have the requested instruction given, because it would have presented the law of self-defense more specifically and affirmatively than did the court's charge. However, we are of the opinion that both the charges — the one given by the court and the one refused — placed upon appellant a greater burden than did the law. In New Orleans N.E. Ry. Co. v. Jopes, 142 U.S. 24, which is quite similar to this case, the Supreme Court of the United States held that if the conductor of the railway acted in self-defense in shooting the plaintiff, who was a passenger, that the railway company was not liable, and that the doctrine of the high degree of care which applies in other cases when a passenger is injured had no application. In Galveston, H. S. A. Ry. Co. v. LaPrelle, 27 Texas Civ. App. 496[27 Tex. Civ. App. 496], this court recognized and announced the same doctrine. But if it should be held that by requesting the refused instruction appellant acquiesced in and adopted the degree of care mentioned in the court's charge, still the refused instruction constituted a more direct application of the law to the case as developed by the testimony, and the court erred in refusing it. (Missouri, K. T. Ry. Co. v. McGlamory, 89 Tex. 635.)

For the error pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.