Gulf, C. & S. F. Ry. Co. v. Cash
| Decision Date | 14 November 1894 |
| Citation | 28 S.W. 387 |
| Parties | GULF, C. & S. F. RY. CO. v. CASH. |
| Court | Texas Court of Appeals |
Appeal from Bosque county court; W. B. Thompson, Judge.
Action by M. G. Cash against the Gulf, Colorado & Santa. Fé Railway Company for injury to mules. Judgment for plaintiff, and defendant appeals. Reversed.
J. W. Terry and Chas. K. Lee, for appellant.
This action was brought to recover damages done by one of appellant's trains to appellee's mules. The railway track extended through appellee's pasture and that of one Helm, between which pastures there was a partition fence. The evidence tended to show that the appellant company had, at some time previous to the accident, fenced in its track through these pastures, and that this fence, when built, was sufficient. As to whether it was sufficient at the time of the accident, the evidence was conflicting, — that of appellee tending to show that in one place there was a gap, caused by the plank coming loose and the top wire dropping down, so as to permit the passage of his mules from the pasture to the right of way, and that it had been in this condition for two or three weeks prior thereto; that of appellant tending to the opposite conclusion.
Error is assigned to the charge, which instructed the jury that a railway company must maintain a fence sufficient to turn ordinary stock, and that its failure to do so is such negligence as will render it liable, which charge, in applying this principle to the facts, reads: "In this case, if it appears from a preponderance of the evidence that the stock in question were injured by the cars of the defendant, and that at the time and near the place where the said injuries occurred the company's fence contained an opening or breach, or was in some way impaired, so that the said stock could effect an entrance to the said track, and should it further appear from a preponderance of the evidence that the said stock did effect an entrance through said breach or impaired place in defendant's fence, then, in this event, it is not necessary, in order that plaintiff recover, that he show any other negligence on the part of defendant." This presents the question, not heretofore decided in this state, so far as we have been able to find, whether the liability of a railway company for injuries arising from defects in the fence inclosing its track, occurring after its construction, is the same as if no fence had been constructed, or whether such liability depends on the question whether it has used ordinary care, or been negligent, in performing the duty to repair and maintain it. The...
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International & G. N. R. Co. v. Richmond
...exercise reasonable diligence or ordinary care to maintain it in that condition. 16 Am. & Eng. Enc. Law (2d Ed.) 493; Railway Co. v. Cash (Tex. Civ. App.) 28 S. W. 387. The statute imposing liability for failure to fence does not apply to places where public necessity and convenience requir......
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Texas & P. Ry. Co. v. Sproles
...has once "fenced in" its track, its responsibility afterwards is only to use ordinary care to keep it in repair. Railway Co. v. Cash, 8 Tex. Civ. App. 569, 28 S. W. 387; Railway Co. v. Erwin (Tex. Civ. App.) 67 S. W. 466. If such is the law, as indicated above, we think its requirements wer......
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Texas Cent. Ry. Co. v. Pruitt
...and docility, is apparently at variance with the law on the same question decided and applied in the case of Railway v. Cash, 8 Tex. Civ. App. 569, 28 S. W. 387, followed in Railway v. Erwin (Tex. Civ. App.) 67 S. W. 466, and Railway v. Reitz, 27 Tex. Civ. App. 411, 65 S. W. 1088, which rea......
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Texas Cent. Ry. Co. v. Pruitt
...railroad has once fenced in its track its responsibility afterwards is only to use ordinary care to keep it in repair. Railway v. Cash, 8 Tex. Civ. App. 569, 28 S. W. 387; Railway v. Irvine (Tex. Civ. App.) 67 S. W. 466. These cases seem to be relied on by the appellant as authority for the......