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

• Citation: 30 S.W. 431
• Parties: SANCHEZ v. SAN ANTONIO & A. P. RY. CO.
• Decision Date: 21 March 1895
• Court: Supreme Court of Texas

Page 431

30 S.W. 431

SANCHEZ v. SAN ANTONIO & A. P. RY. CO.

Supreme Court of Texas.

March 21, 1895.

Error to court of civil appeals of first supreme judicial district.

Action by Macario Sanchez against the San Antonio & Aransas Pass Railway Company. From a judgment of the court of civil appeals (27 S. W. 922) affirming a judgment for defendant, plaintiff brings error. Affirmed.

For former opinions, see 22 S. W. 242, and 27 S. W. 922.

G. R. Scott & Bro., for plaintiff in error. R. W. Stayton, for defendant in error.

DENMAN, J.

Plaintiff, Sanchez, in leaving one of the depots of defendant, stepped from the platform onto the track, and started to walk along same, when he was struck from behind by an engine, and seriously injured, for which he seeks to recover damages. At the time he stepped on the track, he knew the train which struck him was expected to arrive about that time, and the direction from which it was coming. He did not see or hear the train as it approached. His view of the track, in the direction from which it came, was unobstructed for about a mile, and there was nothing to obstruct such view when he stepped on the track, at which time he looked in front of him to see where he was stepping, and did not raise his eyes from the place on which he was stepping. He could not hear the noise of the approach of the train, or hear the sound of the bell or whistle, on account of the noise produced by the escape of steam from an engine standing near the depot. The above is substantially the testimony of plaintiff as to the circumstances attending the accident, and no evidence is found in the record tending in the slightest degree to destroy their probative force on the issue of plaintiff's negligence in going upon the track. Ordinarily, negligence is a fact to be found or inferred from the testimony; but where, from the testimony on the issue of negligence, no inference but negligence can be drawn, it becomes a question of law, and the court may instruct the jury that negligence has been established. Railway Co. v. Ryon, 80 Tex. 61, 15 S. W. 588. Such cases do not often occur. We are of the opinion that the undisputed evidence above stated, given by plaintiff himself, established the fact that he was guilty of negligence in going upon the track, and that the court might have so instructed the jury. Therefore, plaintiff cannot complain of any errors in the charge on the issue of his negligence. Indeed, if the servants of the defendant had not discovered the peril of plaintiff, whereby a new duty devolved upon them, the court should have instructed a verdict for defendant. Railway Co. v. Ryon, 70 Tex. 58, 7 S. W. 687; Id., 80 Tex. 60, 15 S. W. 588. McCarty testified for defendant as follows: "I was the engineer of the locomotive that ran upon plaintiff. As it approached the station house the fireman was ringing the bell. As the engine came up between the platform and the Corpus train, I saw plaintiff on the platform of the depot. He was then about fifteen feet from the edge of the platform, and was going in the direction of the edge of...