Gulf, C. & S. F. Ry. Co. v. Roane
| Decision Date | 21 October 1903 |
| Citation | 76 S.W. 771 |
| Parties | GULF, C. & S. F. RY. CO. v. ROANE. |
| Court | Texas Court of Appeals |
We adhere to the views expressed in our original opinion (75 S. W. 845), to the effect that the evidence is sufficient to authorize the plaintiff to recover, but we have reached the conclusion that there is an error in the charge of the court. There are two states of facts developed by the evidence, either of which would have justified the plaintiff in going upon the track at the time that he did: The first is, he claims, as appears from his evidence, that he understood that the general instructions were to remove tools from the track when a train was approaching. The second is that he rested under the belief that the bar would endanger the approaching train, and possibly cause the destruction of property and the loss of life. If it was a part of the duty of the plaintiff to remove the tools from the track, or if the position of the bar upon the track aroused a reasonable apprehension of danger to the coming train, his remaining upon the track for the purpose of removing the bar would not put him in the attitude of a trespasser, or necessarily subject him to the charge of contributory negligence, unless the train was so near, and the danger of remaining upon the track so obvious, that a man of ordinary prudence would not have made the effort to remove the bar. The first of the reasons, as stated, why the plaintiff went upon the track, was not submitted in the charge of the court for the consideration of the jury. Therefore the evidence bearing on that question could not have well been passed upon by the jury, in view of the charge of the court, wherein the only ground of excuse submitted, justifying the plaintiff's remaining upon the track, was an apprehension of danger from the bar. The plaintiff testified that the train was about three-quarters of a mile away when he saw the iron bar lying between the rails upon the track, which was about 40 feet from where he was standing; that he immediately went in a fast gait towards the bar, for the purpose of removing it, and threw it from the track, and before he could reach a place of safety he discovered the train a few feet off. He then sprang to an abutment upon which the bridge rested, from which he was swept by the movement of the train. The track was straight from the place where the train was first seen to where the bridge was located, and we gather from the evidence that the plaintiff and other bridge hands had...
To continue reading
Request your trial
-
Hovey v. Sanders
...& T. C. Ry. Co. v. Laskowski, 47 S. W. 59; I. & G. N. Ry. Co. v. Starling, 16 Tex. Civ. App. 365, 41 S. W. 181; Gulf, etc., Ry. v. Rhoane, 33 Tex. Civ. App. 299, 76 S. W. 771. It is also held that a failure to stop, look, and listen is not negligence per se. M., K. & T. Ry. v. Balliet, 48 T......
-
St. Louis Southwestern Ry. Co. of Texas v. Harrell
...T. C. Ry. Co. v. Laskowski, 47 S. W. 59; I. & G. N. Ry. Co. v. Starling, 16 Tex. Civ. App. 365, 41 S. W. 181; G., C. & S. F. Ry. Co. v. Roane, 33 Tex. Civ. App. 299, 76 S. W. 771; M., K. & T. Ry. Co. v. Balliet, 48 Tex. Civ. App. 641, 107 S. W. 906; T. & S. Ry. Co. v. Frugia, 43 Tex. Civ. A......
-
Texas Midland R. Co. v. Booth
...clauses quoted from the second portion of the charge. I. & G. N. R. R. Co. v. Neff, 87 Tex. 303, 28 S. W. 283; G., C. & S. F. Ry. Co. v. Roane, 76 S. W. 771, 8 Tex. Ct. Rep. 278. The eighteenth assignment of error complains of the refusal of the following special charge requested by appella......