Houston & T. C. R. Co. v. Collins

• Decision Date: 11 March 1896
• Citation: 52 S.W. 1127
• Parties: HOUSTON & T. C. R. CO. v. COLLINS.
• Court: Texas Court of Appeals

Page 1127

52 S.W. 1127

HOUSTON & T. C. R. CO. v. COLLINS.

Court of Civil Appeals of Texas.

March 11, 1896.

Appeal from district court, Travis county; R. E. Brooks, Judge. Action by R. C. Collins against the Houston & Texas Central Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

Frank Andrews, for appellant. R. H. Ward, John Dowell, and J. J. Faulk, for appellee.

FISHER, C. J.

We are not prepared to hold that the appellee was guilty of contributory negligence, and on the facts of the case generally we cannot say that the evidence did not warrant the verdict. The points argued that the action of the railway company was barred by limitation, and that the receiver and the company were relieved of liability by reason of certain orders of the court in which the receivership was pending, are settled against the appellant by decisions of the supreme court. There was no error in refusing certain charges, for the charges given covered all the points of the case. But it was error to give the charge complained of in the eighth assignment of errors, and for this the judgment will be reversed. The reasons why the charge was improper are stated in the opinion delivered by this court in deciding the recent case of Telephone Co. v. Newman, 34 S. W. 661, where a similar charge was passed upon. In view of another trial, we call attention to the charge complained of in the fourth assignment of errors, and suggest that it would be best to not repeat this charge in the language in which it is stated. While the plaintiff had the right to use the public street, it would be improper, under the facts of the case, to instruct the jury that he would have the legal right to walk on the railway track at the time he was injured. The appellant contended that the part of the street not occupied by the railway track was passable and suitable for use by pedestrians, and that it was negligence upon the part of plaintiff, the night being dark, to walk upon and along the railway track, when he could have occupied other parts of the street with perfect safety. The instruction that the plaintiff had the legal right to walk upon the track, the track being located in a public street, may be correct as an abstract proposition, but under the facts of the case they should not be so instructed, as it may have some effect or influence in turning the scale upon a debatable question that arises from the facts. For the error in giving the charge complained of in the...