Gulf, C. & S. F. Ry. Co. v. Allbright

Citation26 S.W. 250
PartiesGULF, C. & S. F. RY. CO. v. ALLBRIGHT.
Decision Date19 April 1894
CourtCourt of Appeals of Texas

Appeal from Harris county court; John G. Tod, Judge.

Action by F. W. Allbright against the Gulf, Colorado & Santa Fe Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Chas. K. Lee and J. W. Terry, for appellant. G. W. Tharp, for appellee.

WILLIAMS, J.

Appellee, the conductor upon an electric street car in Houston, brought this suit to recover for injuries sustained by him in a collision between the car of which he was in charge and a train belonging to defendant, at a crossing of the two roads, upon the charge that such collision was caused by the fault of the defendant's servants operating its train. The prominent questions made by the evidence in the trial were — First, whether or not defendant's servants were negligent in failing to ring the bell, or to have a red light upon the end of the car, or in running too fast, or in failing to keep a watchman stationed at the crossing, and whether or not such negligence alone caused the accident; second, whether or not plaintiff and the motorman of the car alone caused the collision, by approaching the crossing at too rapid a rate of speed, and failing to keep a proper lookout; third, whether or not the negligence of both parties contributed to the injury.

Upon the first and second questions the evidence was conflicting, there being testimony tending to establish both the affirmative and negative of each. There was also a conflict as to some of the facts affecting the last question, but it is contended by appellant that, taking the view of the testimony bearing upon it most favorable to appellee, the facts which are left uncontradicted show, at least, that he was guilty of contributory negligence. In the view which we take of the cause it is unnecessary to decide this.

The facts raising the question of contributory negligence all came out in the development of the transaction on which the plaintiff relied for a recovery. To entitle him to recover, it was necessary for him to develop that transaction, and show his relation to and connection with it. It was also the right of defendant, by cross-examination of plaintiff's witnesses, and by introduction of its own witnesses, to cover the same ground, and show the whole of the occurrence put in issue by the action. If, when thus fully developed, the plaintiff's connection with the collision was such as presented the question whether or not he was guilty of negligence, which helped to cause it, the defendant was entitled to have a decision of it, whether pleaded or not. Murray v. Railway Co., 73 Tex. 3, 11 S. W. 125; Railway Co. v. Crowder, 63 Tex. 502; Railway Co. v. Riordan (Tex. Civ. App.) 22 S. W. 519. The testimony admissible under this rule undoubtedly made the question of plaintiff's negligence an important one in the case. If it be admitted that there was evidence which, taken by itself, was sufficient to authorize a finding that plaintiff acted with due care in allowing his car to approach the defendant's track as it did, it cannot be denied that there was other testimony which, if accepted, would have established negligence on...

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24 cases
  • Canady v. Coeur d'Alene Lumber Co.
    • United States
    • United States State Supreme Court of Idaho
    • 23 Diciembre 1911
  • DuPuy v. City of Waco, A-10644
    • United States
    • Supreme Court of Texas
    • 13 Octubre 1965
    ......29, 146 S.W.2d 731 (1941); Fort Worth Improvement District No. 1 v. City of Fort Worth, 106 Tex. 148, 158 S.W. 164, 48 L.R.A.,N.S., 994 (1913); Gulf, C. & S. F. Ry. Co. v. Fuller, 63 Tex. 467 (1885); Gulf, C. & S. F. R. R. Co. v. Eddins, 60 Tex. 656 (1884); Illinois Cent. R. Co. v. Moriarity, 135 ......
  • City of San Antonio v. Pigeonhole Parking of Texas
    • United States
    • Supreme Court of Texas
    • 26 Febrero 1958
    ...taken for public purposes or destroyed without adequate compensation being made therefor. Const. art. 1, § 17; Gulf, C. & S. F. Ry. v. Allbright, 7 Tex.Civ.App. 21, 26 S.W. 250; McCammon & Lang Lumber Co. v. Trinity & B. V. Ry. Co., 104 Tex. 8, 133 S.W. 247, 36 L.R.A., N.S., 662, Ann.Cas.19......
  • Chicago, Burlington & Quincy Railway Company v. Cook
    • United States
    • United States State Supreme Court of Wyoming
    • 8 Julio 1909
    ...... instructed the jury on that phase of the case. (Railroad. v. Belt, (Tex. Civ. App. April 21, 1898.) 46 S.W. 374;. Railroad v. Allbright, 7 Tex. Civ. App. 21, 26 S.W. 250;. [102 P. 659] . Bunnell v. Railroad, 13 Utah 314, 44, 44 P. 927 [18. Wyo. 51] 51 P. 927.) As already stated, ......
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