St. Louis Southwestern Ry. Co. of Texas v. Roach-Manigan Paving Co.

209 S.W. 182, 1919 Tex. App. LEXIS 213

Opinion

WILLSON, C. J.

The appeal is from a judgment in appellee’s favor for $350 as the value of two mules belonging to it killed by one of appellant’s trains, and for $4 as the damages to a wagon the mules were drawing at the time they were killed. The accident occurred at a point where Texas street crossed appellant’s track in the city of Greenville.

Notwithstanding evidence, which authorized a finding that appellee’s employs in charge of the mules was guilty of contributors' negligence, the trial court in his charge told the jury to find for the appellee if they believed appellant was guilty of negligence in particulars specified, without reference to whether appellee’s said employe was guilty of contributory negligence or not. We think this was error which required a reversal of the judgment. That the court in his charge also told the jury to find for appellant if they believed appellee was guilty of contributory negligence did not render the error harmless. The jury were not told what to do if they believed, as they might very well have believed from the evidence, that both appellant and ap-pellee’s said employs were guilty of negligence.

The judgment will be reversed, and the cause will be remanded for a new trial.