The Court of Civil Appeals for the Fourth Supreme Judicial District certified to this court the following statement and question:
"The district judge gave the following charge to the jury:
" 'It was the duty of the defendant and its agents and employes to use and exercise ordinary care and prudence in the operation of its trains and engines along and upon its track and to use great care in the operation thereof when approaching public road crossings and street crossings, and it is the duty when so approaching to sound the bell of the engine continuously.'
This is complained of as being incorrect under the ruling in Railway v. Smith, 87 Tex. 348. The charge was complained of in the motion for new trial.
The following charge was asked by appellant, but refused: *Page 66
'The court charges you that it was the duty of the defendant railroad company, and its agents and employes, to use and exercise ordinary care and prudence in the operation of its trains and engines along and upon its tracks, and to use great care in the operation of said trains when approaching public road crossings and street crossings, and it was its duty, when so approaching, to sound the bell of the engine continuously for a distance of eighty rods before reaching said crossings; and if you believe from the evidence that the employes of the defendant company, or its receiver, T.M. Campbell, did use great care and prudence in approaching this West Commerce Street crossing at the time of the accident, and did sound the usual signal of ringing the engine bell then you will find for the defendant.'
Question. — Did the request to give the charge last copied amount to a ratification or inducement of the above copied charge of court, and is appellant prevented thereby from taking advantage of errors in the charge of the court repeated in its requested charge?"
The provisions of our law pertinent to the question submitted are as follows:
Article 1300 Revised Statutes: "After the conclusion of the argument the court shall read to the jury the charges and instructions, if any, under the provisions of this title relating thereto." Article 1319 Revised Statutes: "Either party may present to the judge in writing such instructions as he desires to be given to the jury, and the judge may give such instructions or a part thereof, or he may refuse to give them, as he may see proper, and he shall read to the jury such of them as he may give." Articles 1318 and 1320, Revised Statutes, provide that instructions given by the court and those requested by either party and refused shall be considered as excepted to without the necessity of taking bills of exceptions thereto.
It is the right and duty of counsel engaged in the trial of a cause to aid the court in arriving at a correct solution of the legal questions involved in the case; and, to enable them to exercise this right and to perform the duty, the law confers upon them the privilege of requesting the court to give to the jury charges embodying the law as to such counsel it appears to be applicable to the facts proved. In the absence of a statute upon the subject, the attorney might make his requests for instructions either in writing or verbally. (Am. Eng. Encycl. Law, Vol. 11, p. 259.) Our statute requires not only that the request be in writing, but that the proposition requested to be charged shall be formulated by the counsel as an instruction, so that it may be read by the judge to the jury.
It is a general rule that, when counsel has requested the court to charge a given proposition of law and it is given, if the charge requested and given is erroneous, such error can not be taken advantage of by the party whose counsel made the request.
The question now before the court is, in substance, if, in the course of a trial, counsel requests the court to give an instruction to the jury, *Page 67 which is refused, but which in whole or in part is embraced in the charge of the court, can the counsel or the party for whom he acts question the correctness of the charge given by the court in so far as it conforms to the request made? This question has often been before appellate courts, and has uniformly, so far as we are able to find, been held against the right of a party or his counsel, upon appeal, to call in question a ruling of the trial court which was made at his suggestion; and it has been generally held that when a charge requested, but refused, was embraced in the general charge of the court, any error arising therefrom could not be questioned by the party who requested the charge. Elliott App. Proc., sec. 627; Tucker v. Baldwin, 13 Conn. 136; Alberts v. Vernon,96 Mich. 549; Railway v. Moseley, 56 Fed. Rep., 1009; Haggard v. Ins. Co., 53 Mo. App., 106; Eastman v. Curtis (Vt.), 32 Atl. Rep., 232; Stevens v. Crane, 116 Mo., 408; Silsby v. Mich. Car Co., 54 N.W. Rep., 761; Railway v. Fortney, 51 Kans., 287. The principle upon which these decisions rest is that, although the charge requested was refused by the court, yet, if the same proposition is embodied in the charge given by the court, it will be presumed that the charge as given was so given in compliance with the request made.
The judge may give a charge asked for as it is written by counsel, or may embody it, or so much of it as is deemed applicable to the facts of the case, in the charge prepared by him; in either event it is a ruling of the court upon the question, made at the request of counsel. In the case of Stevens v. Crane, cited above, the court said: "There was some evidence tending to show that the plaintiff had or could have earned some money in the line of his occupation, in a business of as high a grade as that from which he was discharged, and the court was warranted in giving an instruction on that branch of the case. This the plaintiff conceded by asking an instruction on this branch of the case, in substance the same as that given by the court, which was, in fact, the instruction asked by the plaintiff, with some slight verbal modifications, which in no way changed its force or meaning. Conceding then, that there was error in this instruction in not limiting the reduction to money that had or might have been earned by the plaintiff in similar employment, or in the line of his occupation, it is an error of which he can not complain."
In the case submitted to us it appears that in the instruction given and the first part of that requested by counsel the language is identical, showing that one must have been copied from the other. We think that it is a fair conclusion to be drawn from the known practice of courts on such occasions, that after the defendant's counsel presented the charge the presiding judge copied from it so much as he thought applicable to the case on trial, and thus the charge read to the jury was, in fact, given at the request of defendant's counsel. It is the right and duty of the court, at any time before the charges are read to the jury, even before a verdict has been returned, to change the instructions that may have been prepared or given if believed to be erroneous; and a requested *Page 68 charge would be as potent, in suggesting a correct proposition of law to the court, when brought to the attention of the judge after his charge was prepared as before; and we see no difference between leading a judge into error and confirming an error already committed, at a time when it might have been corrected by calling attention to it; the effect is the same. We presume that there was no intention to mislead the trial judge in this instance, but this does not change the rule of law applicable to the case.
We do not say that there might not be circumstances under which counsel might embody in a charge which he desired to be given to the jury a proposition of law which the court had already embraced in its charge, with the view of explaining, limiting, or enlarging its meaning, and that, under such circumstances, the assertion of such proposition would not be held to be an affirmance of its correctness; but it would devolve upon the party claiming such to be the fact to so present his charge as to show the intent with which it was asked, or to reserve a bill of exceptions to that portion of the charge of the court, indicating at the time his disapproval of it; or, if it appeared from the charge itself, as requested, that this was the purpose and intent of it and must have been so understood by the judge when presented to him, we apprehend that it would not be held that this would be a waiver of the error, if any, in the charge as given by the judge. But in this case these facts are not made to appear, and we must presume, in favor of the action of the trial judge, that, in giving the instruction objected to, he acted upon the request of counsel for the defendant.
We therefore answer that, upon the statement as presented to this court, so much of the charge requested by the defendant and refused by the court, as asserts the same proposition as that contained in the charge given by the judge, should not be considered as error upon objection thereto by the defendant.
We do not mean to extend this rule beyond the instances in which the act of the attorney becomes a part of the record in the case.