Brown v. Griffin
| Decision Date | 02 November 1888 |
| Parties | BROWN <I>v.</I> GRIFFIN. |
| Court | Texas Supreme Court |
F. H. Prendergast, for appellant. C. A. Culberson, for appellee.
The appellee was injured by an engine on the railroad of the Texas & Pacific Railway Company, of the property of which the appellant is receiver. This action was brought to recover damages for the injury. The accident occurred in Atlanta, which was shown to be an incorporated town, at a point where a street crossed the track of the company. The depot building stands within a few feet of this street, and upon a side track. The main track is beyond this side track from the depot building. The road at this place, as shown by the map in evidence, runs east and west. The appellee, desiring to cross the railroad, came down to the depot building, and passed west along its platform, and along the side track, to the street, and found that the crossing was completely obstructed by a long train of freight cars standing upon the main track. He halted at the edge of the side track, as he testified, near the end of the cross-ties, and looked westward for an engine on that track, but saw none. He remained where he had stopped for a minute or a minute and a half, when he was struck by the outer edge of the pilot of an engine coming from the east, and thrown down and injured. At the time he was struck his back was towards the east. This is substantially plaintiff's own testimony. The evidence was conflicting as to the rate the engine was running. A witness for plaintiff gave the rate of speed as being from six to eight miles per hour, while one of the defendant's employes stated it was four, and another six, miles. The engine was operated by a fireman, the engineer being at dinner. No bell was rung or whistle blown. The general charge of the court was very full and favorable to the defendant. The jury were very positively told that it was the duty of the plaintiff, upon reaching the crossing, to look and listen for approaching trains; and that if one stops so near a railroad track as to be struck by an engine, without looking in both directions and listening, and is thereby injured, he could not recover, although the person in charge of the engine may have been negligent. The jury were also told that "the law does not permit a person to rely upon an approaching engine to give him warning by signals." In short, the charge presented the theory of contributory negligence, under every possible phase of the testimony, in so clear and emphatic a manner that further instructions were neither necessary nor proper. It follows from this that the court did not err in refusing the instructions asked by appellant. This disposes of his second and third assignments...
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