San Antonio & A. P. Ry. Co. v. Trigo.

• Decision Date: 11 March 1908
• Citation: 108 S.W. 1193
• Parties: SAN ANTONIO & A. P. RY. CO. v. TRIGO et al.
• Court: Texas Court of Appeals

108 S.W. 1193

SAN ANTONIO & A. P. RY. CO. v. TRIGO et al.

Court of Civil Appeals of Texas.

March 11, 1908.

Rehearing Denied April 8, 1908.

Appeal from District Court, Kendall County; R. H. Burney, Judge.

Action by Simon Trigo and others against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Houston Bros., W. A. Wurzbach, and R. J. Boyle, for appellant. W. F. Hays, Ernest Fellbaum and Perry J. Lewis, for appellee.

FLY, J.

This is a suit for damages arising from personal injuries inflicted on Simon Trigo, a minor, through the negligence of appellant, instituted by Tomasa J. de Collazo, joined by her husband, Jacinto Collazo, for herself and as next friend of the minor. This is a second appeal, and the former opinion of this court is referred to for a statement of the pleadings. 101 S. W. 254. The trial was by jury, and resulted in a verdict and judgment for Simon Trigo in the sum of $8,000, and for Tomasa J. de Collazo in the sum of $2,000. It was proved that on September 4, 1904, Simon Trigo, a boy 11 years of age, went into the ticket office of appellant to get a ticket, just before the train was to leave, but failed to get it because the agent was absent. He then got on the train and was asked by an employé of appellant if he had a ticket, and, when the reply was in the negative, the employé told him to get off and get a ticket. He got off and went to the agent who was standing 8 or 10 feet from the train and asked for a ticket. The agent told the boy that there was no time to get a ticket and for him to get on the train. In obedience to the advice of the agent, Simon attempted to board the train, which was moving slowly, and fell between the cars, and received such injuries to one of his legs that amputation was necessitated four inches above the knee. At the time the agent told the boy to get on the train it was moving slowly, and the boy immediately tried to board it. The facts justify the conclusion that the injuries inflicted on Simon Trigo resulted from the negligence of appellant, and that the jury were justified in finding that the boy was not guilty of contributory negligence.

The first assignment of error is directed at the action of the court in refusing to instruct a verdict for appellant, and the proposition thereunder is: "Where a party attempts to board a moving train knowing that such act is dangerous, he is guilty of contributory negligence as a matter of law, and cannot recover." The proposition seems to be based on the fact that on the cross-examination Simon Trigo stated that he knew it was dangerous to get on the train while it was moving. It may be stated that in connection with that statement he said the train was going slow and he thought it was easy to get on; he "thought it wasn't so very dangerous," giving as his reason "because I knew that he knew more than I did." If, however, the boy did know that it was dangerous to board a moving train, he knew no more than every sane man and woman knows, and yet the question as to whether it is negligence to get on a moving train is held to be a question of fact to be determined by a jury, except in cases where the evidence is in such condition as excludes any other reasonable hypothesis than that the act was...