International & G. N. Ry. Co. v. Kuehn

Decision Date01 May 1888
Citation8 S.W. 484
CourtTexas Supreme Court
PartiesINTERNATIONAL & G. N. RY. CO. v. KUEHN <I>et al.</I>

J. D. Guinn and J. H. McLeary, for appellant. Burges & Dibrell and W. R. Neal, for appellees.

WALKER, J.

The widow and the two minor children of Julius Kuehn sued the appellant, and obtained judgment for negligently killing the said Julius. It is elementary, and recognized in the many decisions of this court in like cases, that, to recover in such case, it devolves upon the plaintiffs to show that the death was caused by the defendant; that, in the collision causing the death, the deceased was using proper care, that is, that he was not himself guilty of negligence directly contributing to the collision; and that the defendant company was guilty of negligence, or want of the proper care called for under the circumstances. Regarding the testimony as sufficient in this case to show want of care or negligence on part of the defendant, it remains to determine whether the deceased so acted in the matter as to allow the plaintiffs to recover for the negligence of the defendant. It is a natural presumption that a man in his right mind will not voluntarily and without motive encounter a threatening danger. Where the attendant circumstances show facts from which a jury may deduce the conclusion of want of negligence on part of the deceased, this court will accord to the verdict a conclusive effect. The amount of testimony is for the jury; and, if exercising their judgment upon facts in evidence, their action will not, or rarely, be set aside. In this case the testimony shows that deceased was going home from the town of New Braunfels, near which he lived, by an old and much-traveled public road, with which he was well acquainted. The track of the defendant's railroad crossed the road he was traveling nearly at right angles. The track, at the crossing and for several hundred yards west of it, was upon an embankment variously estimated at from three to seven feet above the level; that to the right of the deceased, and for a distance of 300 yards from the crossing upon the railroad track, there was an unobstructed view from the road on which he was traveling. Some hackberry trees grew along a fence north of the track, and outside of the right of way; but these, being bare of leaves, made no material obstruction to the sight. The testimony is conflicting whether the bell was rung or the whistle sounded at the approach of the train to the crossing; but it is in evidence that the deceased had stated to witness Smith that he saw the train when it was about 40 steps off, and thought he could drive across it before it would reach him, and whipped up his horses for that purpose; to witness Hertman, "that he had seen the train while he was stopping in the lane." Witness Bruestedt, for the plaintiff, had testified to meeting the deceased in the lane, about 50 steps from the track, at which point it seems some halt was...

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    • Supreme Court of Georgia
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    ...56 Am. Rep. 886; Hurst v. Railway Co. (Mich.) 48 N. W. 44; Westeott v. Railroad Co. (Vt.) 17 Atl. 745; Railroad Co. v. Kuehn, 70 Tex. 582, 8 S. W. 484; Munro v. Reclamation Co. (Cal.) 24 Pac. 303; Putman v. Southern Pac. Co. (Or.) 27 Pac. 1033; Belding v. Railroad Co. (S. D.) 53 N. W. 750. ......
  • Texas & P. Ry. Co. v. Sherer
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    • Court of Appeals of Texas
    • January 15, 1916
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