Sam H. Rodgers by his next friend sued the railway company to recover damages for personal injuries inflicted upon him by the alleged negligence of its servants in operating one of its hand or push-cars. Upon a trial before a jury he recovered the sum of $5000, from which the railway company appealed, and which judgment was affirmed by the Court of Civil Appeals. The conclusions of fact as found by the Court of Civil Appeals are as follows:
"The appellee, at the time of the accident, a boy between twelve and thirteen years old, of immature judgment and discretion, was negligently permitted by appellant's servants, while operating on its road one of its hand-cars, to board said hand-car while in motion, which was dangerous to a child of appellee's immature discretion, which danger was known to appellee's servants in charge of and operating the car; and afterwards, through the careless and negligent acts of appellant's servants in operating the car, the appellee was, without any contributory negligence on his part, thrown upon the track and run over by the car, whereby he sustained serious and permanent injuries, to his damage in the sum of $5000."
The trial court charged the jury as follows: "If you believe that said plaintiff was ordered to keep off said car, but that he failed to heed said order, and did not enter said car, and was thereby injured as alleged in the petition, and that he had sufficient intelligence to comprehend the danger incident to boarding said car, but shall further believe that he was injured by the gross negligence of the employees operating said car, as hereafter explained, and that such negligence, if any, was the immediate approximate cause of said injury, then you will find for the plaintiff." The plaintiff in error assigned error upon this charge in the Court of Civil Appeals, which was overruled, and the action of the court in giving the charge and of the Court of Civil Appeals in refusing to sustain the assignment of error is presented in the petition of the plaintiff in error as a ground for a reversal of the judgments of said courts.
The trial court in its charge defined gross negligence as follows: *Page 679 "Gross negligence, as the words are used in this charge, means the omission of that care which even inattentive and thoughtless men never fall to take of their own property."
The effect of the charge of the court first copied above is to tell the jury that if the plaintiff was guilty of negligence which proximately contributed to his injury, yet if the employes of the defendant were guilty of gross negligence which caused the injury, the plaintiff would be entitled to recover judgment for such injury. The facts stated in the charge would unquestionably constitute contributory negligence on the part of plaintiff, and, unless the doctrine of comparative negligence obtains, this charge must be held incorrect. Our courts have expressly repudiated the doctrine of comparative negligence, whereby a party who is guilty of negligence himself is permitted to recover of another party because the defendant is guilty of a greater degree of negligence. (McDonald v. Railway, 86 Tex. 1.) In the case last cited this identical question was before the court, and it was then said: "The question then is whether the ordinary negligence of the plaintiff will defeat a recovery if the negligence of the defendant contributing to the injury is gross? In Railway v. Garcia, 75 Tex. 591, it is said, 'The effect of contributory negligence on plaintiff's right to recover has been recognized in all cases passed upon by this court in which it was involved, and. the rule fixing liability or denying it on the basis of comparative negligence has been condemned, but it seems to us that the doctrine here invoked on behalf of the plaintiff is the rule of comparative negligence in its simplest form.' That rule is defined by Sherman and Redfield as follows: 'The true rule of comparative negligence must be that if the defendant has been guilty of gross negligence, and the plaintiff guilty only of such ordinary negligence as, when compared with the negligence of the defendant, might be called slight, though not slight when considered by itself alone, the plaintiff may recover.' * * * The doctrine that any degree of negligence which may be gross on the part of the defendant will enable a plaintiff to recover notwithstanding his own negligence, is unsound in principle." The doctrine here laid down is clearly and fully applicable to the charge under consideration. It is the statement of comparative negligence in its simplest form, and is therefore contrary to the rules of law established by the decisions of this court.
It is urged on the part of the defendant in error that, if the foregoing charge be considered erroneous, it was corrected by the giving of the following charge asked by the defendant: "You are instructed that even though you should, under other instructions given herein, find that the defendant was negligent, still, if you believe from the evidence that the plaintiff was also negligent, and that his negligence contributed so proximately and directly to the production of his injuries that but for it he would not have been hurt, you will find for the defendant, unless you believe from the evidence that plaintiff was at the time a youth of immature judgment and discretion, and that on account of such immaturity of judgment and discretion he was unable to understand the nature and *Page 680 extent of the peril to which he was exposed; in which event, in order to prevent a recovery by him on the ground of his contributory negligence, you must believe from the evidence that he failed to exercise that degree of care that persons of his age and maturity of judgment and discretion would ordinarily use under such circumstances." The special charge given does not embrace the same proposition as that given by the court hereinbefore quoted, and it could not have been understood by the jury as intended to correct that charge. This is made more evident by other portions of the charge of the court, but if it were true that the special charge asked by the defendant and given by the court asserted a proposition diametrically opposed to that stated in the charge complained of, this would not have cured the error. The giving of a contradictory charge does not correct the error which the court may have committed in the general charge given. "The proper way to effect such correction would be to withdraw the erroneous charge and substitute that which was correct." When the two charges given are in direct conflict, the jury is certainly left without proper direction upon the issue. How could a jury determine as to which of the charges should govern them in finding their verdict? (Railway v. Robinson, 73 Tex. 277; Railway v. Welch, 86 Tex. 203.) For the error committed by the court in the charge given by it as quoted above, this case must be reversed.
Other errors are assigned in the application for writ of error, based upon the ruling of the District Court in sustaining exceptions, excluding evidence, and refusing special charges asked by the defendant which raised these questions:
1. That it devolved upon the plaintiff in this case to prove that the employes of the defendant had authority to invite or to permit him to ride upon the push-car.
2. That if the rules prescribed by the railway company forbade its employes to permit persons to ride upon such cars, then the plaintiff could not recover, although he was ignorant of such rules, unless the permission was given by some officer or employe who had the right to direct the use of the car for that purpose.
We do not deem it necessary in this case to discuss particularly the assignments of error upon which these propositions are based, but in view of another trial we think it proper that we should express our views of the law which ought to govern the court in reference to this case as developed by the facts.
Whether or not the plaintiff was of immature years and so wanting in intelligence that he could not appreciate the danger of getting upon the car is a question of fact to be found by the jury, under the evidence that may be adduced on another trial. Cook v. Navigation Co., 76 Tex. 353; Evansich v. Railway, 57 Tex. 128. Upon this issue of fact the. defendant has the right to have the law given to the jury as applicable to both phases of the case. If the jury should find that the plaintiff by reason of his age and want of intelligence was not capable of appreciating the danger of getting upon the car, and that the employes of the *Page 681 railway company invited or permitted him to get upon it, and if it should appear that to ride upon such a car was dangerous for a child of his age, and further that the act of getting upon the same under the circumstances was such as might have been done by a child of his age and intelligence, the defendant would be liable to him for the injuries inflicted, although its employes may have been forbidden to permit any one to ride upon said car. Disobedience of orders by its servants in such case would not be available to the defendant as a defense to the action. Cook v. Navigation Co., cited above. If, however, the jury should find that the plaintiff had such a degree of intelligence that he could and should have appreciated the danger of his act, then the burden would be upon him to prove that the person or persons who invited or permitted him to ride upon the car had authority so to do, and the rules of the company forbidding employes to permit persons to ride upon such ears would be admissible upon this issue, whether the plaintiff knew of their existence or not. If the proof should show that the employes had such authority, this would only affect the degree of care due to plaintiff under the circumstances, but would not relieve him of the consequences of his own negligence, if any, in boarding the car. If the employes had no such authority, then the defendant cannot be held liable for the injuries received by the plaintiff, although such employes may have been guilty of negligence. Railway v. Cock, 68 Tex. 713 [68 Tex. 713]; Railway v. Dawkins, 77 Tex. 228.
For the error of the District Court in giving the charge complained of, and before quoted, and the error of the Court of Civil Appeals in not sustaining the assignment of errors predicated thereon, the judgments of the District Court and Court of Civil Appeals are reversed and this cause is remanded.
Reversed and remanded.