Appeal from district court, Travis county; F. G. Morris, Judge.
Action by John Patterson against the Houston & Texas Central Railroad Company. There was a judgment for plaintiff, and defendant appeals. Reversed.
The brief of appellant correctly states the nature and result of the case, as follows: "This suit was instituted in the district court of Travis county, Tex., on October 1, 1895, in which the plaintiff sought to recover damages against the defendant for injuries alleged to have been inflicted upon the plaintiff through the negligence of the defendant, in its yards in Austin, on or about the 8th day of February, 1895, which resulted in the loss of a leg, it being amputated about midway between the ankle and the knee, and other injuries to the side and back. The negligence charged was a failure to ring the bell and blow the whistle at a crossing, and running at a high rate of speed in the corporate limits of the city of Austin, contrary to ordinances. The defendant answered by general demurrer, by general denial, and by special pleas of contributory negligence, which will be noted further, and specially setting up that the plaintiff was in a play, romp, or frolic with one Charlie Lankford, in which the said Lankford was pretending to burn the plaintiff with a hot iron, and in said romp the plaintiff, without paying any attention to where he was going, and without any business at said place, ran into the defendant's engine, and received whatever injuries he sustained through his own carelessness and negligence in that behalf, and that he went on and upon said crossing without stopping or looking or listening, or exercising any care for his own protection, and that if he had stopped or looked or listened, or exercised any other precaution, he could easily have discovered the approaching engine in time, by the exercise of ordinary care, to have avoided all injury; all of which was fully set out and pleaded in detail. The defendant also set up the defense that the plaintiff was a fellow servant of the engineer, and had no cause of action on that account. On a trial of the case, on the 26th day of April, 1898, upon a verdict of the jury to that effect, judgment was rendered in favor of the plaintiff for $2,600. Motion for new trial was duly made and filed, which, upon hearing, was by the court overruled, June 20th; to which ruling the defendant in open court excepted, and gave notice of appeal, and the appeal was duly perfected by the filing of a statement of facts, appeal bond, and assignments of error."
The case was submitted to the jury upon the following instructions: "The plaintiff sues the defendant railroad company for damages for personal injuries, alleged to have been caused by negligence of defendant's employés, consisting in carelessly running a switch engine at a dangerous rate of speed, above six miles an hour, in the city of Austin, across a public street, without keeping a lookout for persons who might be hit by the engine, or ringing a bell or blowing a whistle on the engine at least eighty rods distant from a street crossing, in failing to bring the engine to a full stop before crossing the street on which the plaintiff was passing, and in carelessly and negligently leaving cars on the tracks of defendant, so as to obstruct plaintiff's view of the engine which struck him. The defendant answers, and denies the allegations of plaintiff's petition, and pleads as a defense:
"First. That its employés were operating its engine in a careful and prudent manner, and that plaintiff was injured through his own negligence in failing to look out for the engine, when he knew it was being operated in the switch yard.
"Second. That plaintiff's injury was caused
by his own negligence, in that, while he was not engaged in any business for defendant, he engaged with Chas. Lankford in an altercation or play, and carelessly and negligently, while so engaged, ran into the moving engine, and was hurt under circumstances under which the engine could not have been stopped so as to prevent injury, after it appeared that plaintiff would run in front of the engine; that plaintiff was well aware of the danger of running carelessly in the switch yard, where engines and cars were moving, or likely to be moving, at any time. The details of negligence charged by plaintiff and of the negligence of plaintiff charged by defendant to have existed are set out in the pleadings of the parties, to which you are referred for the details thereof.
"(1) Railroad companies are not liable for damages in all cases in which their employés cause injury to others, but only when injury is caused by negligence of its employés, and without negligence, on the part of the person injured, which contributed proximately to the injury complained of. Hence it is necessary for the court to define `negligence' to you, and for you to determine from the evidence whether plaintiff's employés were guilty of negligence which was the proximate cause of the injury inflicted upon plaintiff; and, if you find that the defendant's employés were thus negligent, then whether plaintiff was also guilty of negligence which contributed proximately to his injury.
"(2) Negligence in any given case consists in the failure by a person or persons to perform a duty imposed by law, or the doing of that which is forbidden by law, intended in either case to prevent injuries by requiring certain measure of care, or in the failure to use such care, in acting or refraining from acting, to avoid injuries to others which ordinarily prudent persons usually exercise to avoid injuring others under similar circumstances to those existing in the case under consideration.
"(3) Contributory negligence consists of negligence by the party inflicting the injury, and negligence on the part of the injured person, when the negligence of each contributed proximately to the injury, and when the injury would not have occurred, notwithstanding the negligence of the party inflicting the injury, if the injured person had not been negligent.
"(4) It was the duty of the defendant, under the ordinances of the city of Austin, to refrain from running its engines at a greater rate of speed than six miles per hour in the corporate limits of the city of Austin, and the running of its engines, or any of them, at a greater rate of speed than six miles an hour, would be negligence on the part of the defendant.
"(5) It was the duty of defendant's employés to ring the bell and blow the whistle on the engines of defendant at least eighty rods from the place where the railroad crosses a public street, and the failure to cause such bell to ring and whistle to blow at this distance, before crossing a street, would be negligence.
"(6) If the jury do not find from the evidence that the defendant's employé or employés was or were guilty of negligence of a nature charged in plaintiff's petition, which was a proximate cause of injury to plaintiff, you will find for the defendant, whether you shall find that plaintiff was guilty of negligence or not.
"(7) If you shall find from the evidence that the defendant was guilty of negligence in some or all of the particulars charged in plaintiff's petition, and that such negligence contributed proximately to the injury of plaintiff, you will find for the plaintiff, unless you shall further find that plaintiff was also guilty of negligence in some one or all of the particulars charged in defendant's answer against plaintiff, and that such negligence of plaintiff contributed proximately to his injuries, and that the injury would not have occurred but for such negligence of plaintiff, in which event you will find for defendant.
"(8) If the jury shall find for the plaintiff, they will assess his damages at such...
