* Writ of error granted June 9, 1926. On the theory that the testimony did not warrant a finding that it was guilty of actionable negligence, and demanded a finding that the deceased was guilty of negligence which "was the direct cause of his death," appellant requested the trial court to instruct the jury to return a verdict in its favor, and complains here because the court refused to comply with its request.
If appellant was guilty of negligence as charged against it, the fact, if it was a fact, that deceased also was guilty of negligence which was a contributing cause of the accident, was not a reason why appellee should have been denied a recovery; for the only effect of such negligence on the part of the deceased would have been to diminish the amount appellee was entitled to recover. U.S. Comp.St. § 8659.
The debatable question, if there is one, involved in the contention, is as to whether there was testimony raising an issue as to whether employes of appellant in charge of the engine used in the switching operations were guilty of negligence in the respects charged against them in appellee's petition. That said employes did not keep a lookout for the deceased and did not warn him that the engine and cars were approaching the bridge on the side track appeared without dispute in the testimony. Did they thereby violate a duty they owed the deceased? We think the jury had a right to say they did.
Appellant insists to the contrary, and as supporting its view relies mainly on Aerkfetz v. Humphreys, 12 S. Ct. 835, 145 U.S. 418,36 L. Ed. 758. But that case in its facts was different from this one. It appeared there, and does not here, that the switch engine "was constantly moving (quoting) forwards and backwards, changing cars and making up trains" in the defendant's yards; that at the time of the accident the defendant's employ's engaged in the switching operations "could not (quoting further) have moved the cars at any slower rate of speed"; and that —
"The ringing of bells (still quoting) and blowing of whistles on trains going and coming, and switch engines moving forwards and backwards, would have simply tended to confusion."
In this case we think the jury might reasonably have concluded that ringing the bell and sounding the whistle of the engine, instead of operating to confuse deceased, in all probability would have attracted his attention to the approaching engine and cars in time to have enabled him to avoid danger from them. If so, then the jury might have predicated a finding of negligence on the failure of said employes to ring the bell or blow the whistle, or otherwise warn deceased of *Page 654 the approach of the engine and cars. That the jury might have predicated a finding of negligence on the failure of said employes to keep a lookout for deceased seems to be established by decisions of courts of this state. Railway Co. v. Watkins, 29 S.W. 233, 88 Tex. 20; Ry. Co. v. Bolton, 81 S.W. 123, 36 Tex. Civ. App. 87; Railway Co. v. Watts (Tex.Civ.App.) 173 S.W. 909.
Among other cases than Aerkfetz v. Humphreys, mentioned above, cited by appellant in support of its contention, is Gilmer v. Railway Co. (C.C.A.) 4 F.2d 963, where it was held on facts in some respects similar to facts in this case that it appeared as a matter of law that the injury to Gilmer was due to risk he had assumed. As we understand the assignments in appellant's brief, such a question is not presented in any of them.
In the third paragraph of his main charge the trial court instructed the jury, in effect, to find for appellee, other conditions concurring, if they believed employes of appellant engaged in switching cars, without keeping a lookout for the deceased or without warning him that they were doing so, pushed a car on the side track while a freight train was moving over the bridge across the bayou, and further believed that in so pushing the car said employes were guilty of negligence which was proximate cause of the deceased's death. After so instructing the jury the court, at appellant's request, gave them a special charge as follows:
"The jury are charged that under the circumstances of this case there was no duty devolved on the engineer operating the engine in the yards at the time to keep watch or lookout for S. L. Jones, and to warn him of the engine's approach. And it would not be negligence if the engineer, under this circumstance, failed to give warning of the movement of the train towards S. L. Jones."
Appellant insists, and we agree, that the instructions were contradictory of each other, but we do not agree that the instructions in said third paragraph of the court's main charge were erroneous on any of the grounds of the objection urged to them. If they were not, then the fact that they were contradictory of instructions in the special charges is not a reason why the judgment should be reversed. When the instructions in the main charge are correct, the rule applicable denies to an appellant a right to complain of an inconsistency brought about by the giving of special charges requested by him. Ferguson v. Johnson (Tex.Civ.App.) 205 S.W. 512; Railway Co. v. Withers (Tex.Civ.App.)167 S.W. 5.
It is insisted that the judgment was for an excessive amount. It appeared from the testimony that the deceased, 62 years old at the time he was killed, was in "perfect health" and was earning $79 or $80 per month, practically all of which went to the support of his sister and her daughter. We think the judgment is not so clearly excessive as to require us to set it aside; therefore the contention is overruled.
Other contentions are presented by the assignments, but we think none of them show error entitling appellant to a reversal of the judgment.
The judgment is affirmed.