Ft. Worth & R. G. Ry. Co. v. Bowen.

• Citation: 67 S.W. 408
• Parties: FT. WORTH & R. G. RY. CO. v. BOWEN.
• Decision Date: 03 April 1902
• Court: Supreme Court of Texas

67 S.W. 408

FT. WORTH & R. G. RY. CO. v. BOWEN.

Supreme Court of Texas.

April 3, 1902.

Certified question from court of civil appeals of Second supreme judicial district.

Action by W. I. Bowen against the Ft. Worth & Rio Grande Railway Company. From a judgment for plaintiff, defendant appealed to the court of civil appeals. Certified question from the court of civil appeals.

N. H. Lassiter, Robert Harrison, and West, Smith & Chapman, for appellant. Carlock & Gillespie, for appellee.

BROWN, J.

The court of civil appeals for the Second supreme judicial district has certified to this court the following statement and question:

"This appeal, now pending before us, is from a verdict and judgment in favor of appellee for $7,250, recovered as damages for personal injuries received while in the service of appellant as a freight brakeman. One ground of recovery alleged and relied on in the trial of the case was what is familiarly termed `discovered negligence'; that is, that the conductor of the train discovered that appellee was in a dangerous position in time to have prevented the injury if proper effort had been made by him to do so, and failed, through negligence, to prevent the collision, which resulted in seriously injuring appellee. The testimony of the conductor tended to show that when he discovered the dangerous position of appellee, when the car was about 10 or 12 feet from him, that he promptly made an outcry to warn him of the impending danger; that this outcry attracted his attention and saved his life; and that, if proper diligence had been used by appellee, he would have seen the approaching car, and avoided injury altogether. In other words, the testimony of the conductor tended to show that he was not guilty of negligence in the matter of warning appellee. But, on the other hand, the testimony of appellee and one other witness tended to show that the warning was not given until the collision occurred, which seemed to raise the inference that the conductor was negligent in not sufficiently warning appellee as soon as he discovered him in danger, and in time for him to have avoided the injury. We refer in this connection to the testimony of the conductor and appellee as set out in briefs of counsel. In submitting this issue, the court gave the following charge, to which error is assigned: `In this connection, you are further instructed that although you believe, under other instructions herein given you, that plaintiff was guilty of...