Bryant v. International & G. N. R. Co.

• Citation: 46 S.W. 82
• Parties: BRYANT v. INTERNATIONAL & G. N. R. CO.
• Decision Date: 18 May 1898
• Court: Texas Court of Appeals

46 S.W. 82

BRYANT v. INTERNATIONAL & G. N. R. CO.

Court of Civil Appeals of Texas.

May 18, 1898.

Appeal from district court, Montgomery county; L. B. Hightower, Judge.

Action by J. M. Bryant against the International & Great Northern Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.

This suit was brought by appellant against the appellee to recover the sum of $5,000 damages alleged to have been sustained by appellant in being thrown from a wagon and run over by the same while crossing appellee's railroad track at a public highway. The grounds of negligence alleged by appellant are as follows: "First. That in opening up the public highway, which was blocked with defendant's trains and cars, so that appellant and his companions might, with safety, pass (then in waiting), the defendant company, its agents and employés, negligently left its cars standing near by on its side tracks Nos. 3 and 4, each side of said public crossing going west, which said cars so standing and negligently left by said defendant company, its agents and employés, entirely obstructed the view of appellant and his companions of any movement of defendant's engines or cars on its main line until appellant and his companions had crossed said side tracks Nos. 3 and 4, going west. Second. That when said public crossing was thus opened, defendant's servants invited appellant and his companions to `pass over'; that the way was open. Third. Seeing the crossing open, and relying on message of defendant's servants to `come ahead; way is open,' appellant and his companions drove on, crossing side tracks Nos. 3 and 4, going west, filled each side with standing cars, which entirely obstructed their view until they reached the main line, only 12 feet from side tracks, and then for the first time heard and saw defendant's train approaching from the north, backing very rapidly towards and over the crossing, without giving any signals or warning whatever of its said approach to said crossing. Fourth. That to avoid the impending danger of being crushed to death, the driver of team urged his team with great rapidity from the track, and in doing this appellant was thrown violently out, and injured, without fault on his part." The defendant answered by general denial and contributory negligence of appellant and his companions. Upon a trial, July 13, 1897, before a jury, there was a verdict and judgment for defendant. Appellant filed his motion for new trial, which was overruled, and gave notice of and perfected his appeal, assigns errors, and brings the cause to this court.

S. A. McCall, for appellant. G. H. Gould, for appellee.

NEILL, J. (after stating the facts).

The court, at the request of the appellee's counsel, gave the jury the following special charge: "Although there may have been apparent danger to plaintiff, yet, if there was in fact no danger, defendant would not be liable for plaintiff's imaginary danger." The effect of this is to tell the jury that in a case where sudden peril to one is made apparent to him by the negligent act of another, and he acts upon appearances of danger surrounding him for the purpose of saving his life or avoiding injury, and in doing so receives an injury which would not have occurred had he not so acted, he cannot recover if the apparent danger did not in fact exist. It is calculated to induce a jury to believe that danger did not exist, but was only...