Citizens' Ry. Co. v. Holmes

• Decision Date: 08 June 1898
• Citation: 46 S.W. 116
• Parties: CITIZENS' RY. CO. v. HOLMES.
• Court: Texas Court of Appeals

46 S.W. 116

CITIZENS' RY. CO. v. HOLMES.

Court of Civil Appeals of Texas.

June 8, 1898.

Appeal from district court, McLennan county; Samuel R. Scott, Judge.

Action by R. Holmes against the Citizens' Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Clark & Bolinger, for appellant.

FISHER, C. J.

Appellee, while attempting to cross the street-car track of appellant's road, was struck by one of the street cars. He brought this suit for the damages he sustained in the collision, and recovered judgment against the appellant for the sum of $500. In defense of the cause, the appellant pleaded that appellee was guilty of contributory negligence in suddenly turning his wagon and team across the streetcar track, in front of a moving electric car, and in plain view of the car, which he could have seen or heard by the exercise of ordinary diligence. There are some facts in the record which tend to show that the motorman upon the car did not keep the proper lookout, nor sound the gong nor give warning of the approach of the car; and there are also facts in the record which strongly tend to show that the appellee, under the circumstances, was guilty of contributory negligence in attempting to cross the track in front of the approaching car.

It is contended by the appellant that the weight of evidence shows that the appellee was guilty of contributory negligence, and that for this reason the verdict of the jury is contrary to the evidence. In view of the fact that we reverse the cause upon another ground, we express no opinion upon the point raised in this assignment.

The court below gave the following in charge to the jury: "That it was the duty of the defendant to sound the gong or ring the bell, as the case may be, at any and all places along their line when people are on the track, for the purpose of warning persons of the approach of the car; and, if a person should be in close proximity to the car in front of a car, it would be the duty of the operators of the car to continue such gong or ring the bell, until the person in front should move sufficiently far from the track to permit the passage of the car without injury, or to prevent collision, and that a failure to perform such duty would in either case constitute negligence on the part of defendant company." It is contended that this charge was on the weight of evidence, because it instructed the jury that the failure to sound the gong or ring the bell, and to continue to do so while persons were on or near the track, would be negligence. The general statute that relates to the duty of the operation of railway trains on the subject of blowing the whistle or...