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

• Decision Date: 01 February 1899
• Citation: 49 S.W. 924
• Parties: SAN ANTONIO & A. P. RY. CO. v. PETERSON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

49 S.W. 924

SAN ANTONIO & A. P. RY. CO. v. PETERSON.¹

Court of Civil Appeals of Texas.

February 1, 1899.

Appeal from district court, Harris county; William H. Wilson, Judge.

Action by Arnt Peterson against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

A. T. Holt, for appellant. A. C. Allen, Edgar Watkins, and Frank C. Jones, for appellee.

JAMES, C. J.

Action for damages for personal injuries. There was testimony of the following facts: That plaintiff, Peterson, was at a point on a street or avenue in the city of Houston where it was crossed by a track of defendant, and, when about to cross the track with his wagon, defendant's cars were backed towards the street, the end car being close to the street when so put in motion, and continued to be moved until such end car entered the street; that, when the cars were moved, plaintiff's horses became frightened, and he drove across the track rapidly, because of the approaching car, to avoid a collision, the result of which was that the horses ran away, throwing plaintiff out, and injuring him. There was evidence of negligence of defendant's employés in so moving the cars with reference to persons using the street. Defendant pleaded: "That it was in the business of conducting a railway, in which it was necessary to have, and it had, a depot, yards, and tracks in the city of Houston, at or near the scene of the accident, and that it used said yards and track for the purpose of operating its trains in and about its freight depot, in handling cars, making up trains, and switching cars, in the conduct of which work it was necessary to use a locomotive engine to move said cars and trains; that on the date of the accident, at the time plaintiff alleged he was injured, it was operating the engine and cars in the usual and ordinary manner in the conduct of the work; that at the time of the accident the engine and cars were not near the crossing where plaintiff was hurt, and that it did not know he was at or near said crossing; that it did not, at said time, move any cars into or upon the crossing of the track and McKinney avenue, nor blow any whistle, or make any noise, unusual, or in any manner calculated to frighten plaintiff's horses, nor place any object on or near said crossing which could have frightened them; that it did place a car on its side track, near its platform, but that it at no time moved any cars or engine to, into, or across the McKinney street crossing. Defendant further alleged that the accident was caused by plaintiff striking his horses, and driving them rapidly upon the crossing, causing the horses to take fright at the noise of his wagon, and that, when the horses became unmanageable, plaintiff became excited and frightened, so that he could not control them, and that his position in the wagon was such that he fell out in his attempt to check them, by reason of which all of his injuries were caused and proximately produced; that plaintiff was guilty of contributory negligence, in that he knew that his horses would become frightened at the cars standing in the vicinity of the crossing, and failed to approach the same carefully, and at an ordinary gait, but urged and forced his team across rapidly, which so frightened the same that they became unmanageable by plaintiff, who was himself...