I agree with the court only as to the last ground of negligence discussed in the opinion. I can not say from the facts that the jury were not authorized to draw the conclusion that the railway company had not exercised proper care and diligence in inspecting and guarding the switch. I can not agree with the court in the conclusions reached as to the other grounds of negligence discussed in the opinion.
Affirmed.
In this case writ of error was granted by the Supreme Court but the errors assigned were never finally ruled upon by that court; the case was reversed and dismissed in accordance with agreement of counsel.
The memorandum made at the time of granting the writ shows: "We are inclined to think that there was no evidence of negligence in locating the switch, and that the court erred in charging upon that issue."
From appellants' application for writ of error. S.R. Fisher, for petitioner. — The Court of Civil Appeals erred in holding that the charge of the trial court was not obnoxious to the objection that it authorized a recovery by appellees upon the finding that appellant was guilty of negligence in locating the switch upon a heavy grade and in close proximity to a sharp curve, because the testimony, without conflict, showed that a switch so located, or located as was this switch, could be operated over with safety, there being no charge or pretense that the wreck in which plaintiffs' decedent lost his life was caused or produced by any negligence in the operation of said train.
If it be conceded that the jury, as a condition precedent to a recovery, were required to find that the defendant had failed to exercise ordinary care in "maintaining in a reasonably safe condition its track and switch," still the fact remains that, under the charge, they were authorized to consider, either by itself or in connection with other elements of alleged failure to exercise such care, the location of the switch, etc., "near the north end of a sharp curve and on a steep grade."
The statement by the Court of Civil Appeals that the appellant, by its assignments of error, assailed the charge, in the particular complained of, on the ground solely that it authorized a finding for plaintiffs *Page 206 "upon a mere finding of negligence in locating the switch and switch stand," is incorrect. The assignments assailed the charge because it authorized the location of the switch near a sharp curve and on a steep grade to be taken into consideration at all, either by itself or in connection with other alleged acts of negligence, in determining whether there had been negligence in original construction or subsequent maintenance in failing to construct and maintain, in a reasonably safe condition, its roadbed, track, switch, switch stand, etc., at the place of derailment.