Full opinion text
LEVY, J. (after stating the facts as above). The court charged the jury: “If you believe from the evidence that the defendant in loading the coal on the tender or in maintaining its track at the place where such injury occurred, or in running the train at too great a speed, or in providing an insufficient number of men to keep the track in the section where such injury occurred, if it did occur, in good condition, failed to exercise ordinary care as that term is defined in this charge, and if you believe that such personal injuries to James Smith, if any, resulted in his death and from the failure of the defendant to exercise care in respect to its railway track and running its train and in loading, its tender, as above stated, then and in that event you should find for the plaintiff; but, if you do not so believe, you will find for the defendant.” Appellant contends for error that the charge is upon the weight of evidence. The charge assumes that the train was being run at too great a rate of speed,, and that an insufficient number of section-men were provided to properly maintain the track of that section. These were sharply controverted issues in the case and material grounds of negligence pleaded and relied on. We feel constrained to hold that it was a charge upon weight of evidence and in violation of the statute in such respect. Under repeated decisions, it is held to be reversible error, under the terms of the statute, for the court to charge at all on the weight of evidence. And, besides, it is further contended that it was error to submit as a ground for recovery the failure to furnish a sufficient number of sectionmen to maintain the track of that section. It can he conceded, as claimed by appellees, that appellant owed the duty to its sectionmen at work along the right of way to use the proper care to guard against coal falling from the tender of its moving locomotive and injuring any of them, and because of negligence, if shown, in that regard, and without fault of the injured seetionman, to be liable for such injury proximately resulting to him. And it is obvious that the falling of a lump of coal from the tender of a locomotive in operation could properly be attributable by the jury to improper loading in the tender or negligent operation of the locomotive over the track under the circumstances of the case, if such are shown to be the facts. But, if the appellant did fail to provide a sufficient number of sectionmen to work on the track of that section, it could not be said that the falling of the coal was due to such dereliction. Such dereliction was, it must be said in this case, clearly shown to be merely a remote incident, and not the proximate cause of the present injury. It is fundamental that there can be no recovery unless the particular negligence relied on was the proximate cause of the injury. It was prejudicial error to so charge on this ground. In view of another trial, it is suggested that a clearer charge on the measure of damages be framed and submitted, and the court can fully and affirmatively present ⅛ the main charge the issue of the cause of the death of deceased, Appellees are entitled to have the jury say whether the efficient cause of the death was the injury in suit, or if Smith after his injury, if any, became affected with some disease, and that such disease was directly and proximately caused by or arose as the direct and proximate result of the injury received in being struck by the lump of coal, if so. And the appellant is entitled to have properly and affirmatively presented its contention in this respect that deceased did not receive the injury in question, and died solely from disease arising from natural causes. The court properly, though, refused special charge No. 8 as appears in the brief. See 1 Thompson on Neg. § 151. It is there laid down that if the negligence of another produces a hurt which aggravates a pre-existing tendency to disease in the injured person the negligence, and not the disease, is deemed in law the proximate cause of the injury. The special charge relieved of liability if the “death was due in some manner to the effects” of the particular disease mentioned. We do not mean to 5e understood as saying or meaning that the appellant was not entitled to have the jury say in an affirmative charge whether the death was solely the natural and proximate result of the particular disease mentioned in the special charge. It may be pure theory, and the evidence slight, that he had this particular disease mentioned in the charge, but there was enough to require the jury to say. The judgment was ordered reversed, and the cause remanded for another trial.