40 S.W. 956 (Tex. 1897), Missouri, K. & T. Ry. Co. of Texas v. Rogers

Citation:40 S.W. 956, 91 Tex. 52
Opinion Judge:BROWN, J.
Attorney:[91 Tex. 53]T. S. Miller and Head, Dillard & Muse, for plaintiff in error. [91 Tex. 54] Green & Culp, for defendant in error.
Case Date:May 20, 1897
Court:Supreme Court of Texas

Page 956

40 S.W. 956 (Tex. 1897)

91 Tex. 52




Supreme Court of Texas

May 20, 1897

Error to court of civil appeals of Second supreme judicial district.

Action by R. D. Rogers against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff was affirmed by the court of civil appeals (40 S.W. 849), and defendant brings error. Reversed.

Page 957

[91 Tex. 53]T. S. Miller and Head, Dillard & Muse, for plaintiff in error.

[91 Tex. 54] Green & Culp, for defendant in error.


From the facts as found by the court of civil appeals we make the following statement: On the 6th day of August, 1895, R. D. Rogers was traveling in a wagon westward on Broadway street in the city of Gainesville, Tex., when he came to a crossing of the said street over the railroad track of the plaintiff in error, and an engine upon the said railroad pushed some box cars backward on the said track towards him from the north. On their approach he leaped from the wagon, under the apprehension that unless he did so he would be run over by the cars and probably killed. In leaping from the wagon he fell, and injured his knee and hip to such an extent as to justify a verdict for damages in the amount of $750. The evidence tends to establish that appellant was guilty of negligence in allowing the coal house and an ice house and beer house, which were not used by it, but rented to private parties for their private business, to be built on its right of way, at this crossing, so as to obstruct the view of its track north of the street from persons passing along the street westward, and also in allowing a box car to stand on one of its tracks, partly in Broadway street, so as to prevent plaintiff from seeing the train which caused the injury. The evidence also tends to establish that appellant's servants were guilty of negligence in propelling the train too rapidly over the street, and in not ringing the bell or blowing the whistle as it approached the street; but this is a controverted issue, [91 Tex. 55] upon which there is sufficient evidence to have supported a verdict either way. The evidence also tends to establish that the plaintiff was not guilty of any negligence in going upon the track when and where he was injured, and that, upon passing the obstructions aforesaid on the tracks of appellant, the sudden appearance of the cars, with their nearness to the plaintiff, taking into consideration the speed at which they were approaching him, was sufficient to produce in the mind of any ordinarily discreet and prudent person the belief that he was in danger of being run over, and that it was necessary for him to leap from the wagon in order to save himself, although the evidence shows that if he had remained in his seat on the wagon he would not have been injured. Upon the trial before a jury, verdict and judgment were given for plaintiff below, from which the railroad company appealed to the court of civil appeals, which affirmed the judgment of the district court.

The trial court charged the jury as follows: '(1) 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. It was also the duty of the defendant company, in propelling its cars along its road across said Broadway street, to use ordinary care and caution in order to avoid injury to persons on said street. (2) By the term 'ordinary care and caution,' as used in this charge, is meant that degree of care and caution which an ordinarily prudent person would use under like circumstances, and nothing more; and the failure to use such care and caution constitutes negligence. (3) If you find...

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