40 S.W. 849 (Tex.Civ.App. 1897), Missouri, K. & T. Ry. Co. of Texas v. Rogers

Citation:40 S.W. 849
Opinion Judge:HUNTER, J.
Party Name:MISSOURI, K. & T. RY. CO. OF TEXAS v. ROGERS. [1]
Attorney:T. S. Miller and Head, Dillard & Muse, for appellant. Green & Culp, for appellee.
Case Date:March 06, 1897
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas
 
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Page 849

40 S.W. 849 (Tex.Civ.App. 1897)

MISSOURI, K. & T. RY. CO. OF TEXAS

v.

ROGERS. 1

Court of Civil Appeals of Texas

March 6, 1897

Appeal from district court, Cooke county; D. E. Barrett, Judge.

Action by R. D. Rogers against the Missouri, Kansas & Texas Railway Company of Texas for personal injuries caused by defendant's negligence. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

It is proper to refuse a charge, as on the weight of evidence, that it is the duty of one approaching a railroad crossing to exercise ordinary care, and if, in the exercise of such care, it was plaintiff's duty to stop before driving on the railway, and he failed to so do, the jury should find for defendant; and so if, in the exercise of such care, it was his duty to look and listen for a train, and he failed to do so, they should find for defendant.

Page 850

The first assignment of error is as follows: "The court erred in the first paragraph of his charge to the jury, in the following words: 'It was the duty of the defendant company to use ordinary care and caution to avoid such obstructions on its right of way and side tracks near Broadway street as would prevent persons crossing its road on said street to discover the approach of trains crossing said street, * * *'-because this charge assumes and states that it is the duty of a railroad company to keep its right of way and side tracks so unobstructed as not to prevent persons nearing the crossing from discovering the approach of trains, and merely leaves to the jury the question as to whether it had used sufficient care to prevent such obstructions. * * *"

The fifth assignment is as follows: "The court erred in refusing to give special instruction No. 8, asked by the defendant, because if the plaintiff was injured by an act of Williams, negligent or otherwise, and not because of the negligence of defendant in operating its trains, he could not recover. The eighth special charge asked and refused as follows: 'If you believe from the evidence that the plaintiff was injured through any act of A. M. Williams, either in failing to stop or in driving over the crossing, and if you believe further that at the time the defendant was operating its train in a careful manner, you will find for the defendant, irrespective of whether you may believe that said Williams was negligent or not."'

The sixth assignment is as follows: "The court erred in giving the seventh paragraph of his charge in the terms in which it was given, and in refusing the tenth special instruction requested, because under the seventh paragraph, as given, the plaintiff would be entitled to recover, although there was no real danger, irrespective of the question of negligence, if a man of ordinary prudence would have leaped from the wagon; whereas the true rule is that if one brings an injury upon himself because of a condition of affairs apparently dangerous, but not really so, he cannot recover against the person bringing about this condition of affairs, unless such an one was guilty of negligence in so bringing it about. The seventh paragraph of the court's charge was as follows: 'If you find from the evidence that, at the time plaintiff jumped from said wagon, he was in no actual danger of being hurt by said train, and if you further find and believe from the evidence that it would have reasonably appeared to an ordinarily prudent person similarly situated and circumstanced as plaintiff was that it was not necessary to jump from said wagon to avoid injury from said train, then you will find for defendant.' The tenth special charge asked by defendant, and refused by the court, is as follows: 'In this case, in any event, before you can return a verdict for the plaintiff, you must find the concurrence of the following facts: (1) You must find that, if plaintiff had remained in the wagon, he would have been in a position of some real danger, or else that the defendant was guilty of some negligent...

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