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

• Decision Date: 01 December 1897
• Citation: 43 S.W. 34
• Court: Texas Court of Appeals
• Parties: SMITH v. HOUSTON & T. C. R. CO.

43 S.W. 34

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

Court of Civil Appeals of Texas.

December 1, 1897.

Appeal from district court, Travis county; F. G. Morris, Judge.

Action by John Smith against the Houston & Texas Central Railroad Company. From a judgment on a verdict directed for defendant, plaintiff appeals. Affirmed.

Henry Faulk, W. D. Hart, and William M. Walton, for appellant. Frank Andrews, for appellee.

FISHER, C. J.

This suit was brought by appellant, Smith, against the railroad company, for $10,000, damages on account of injuries sustained by him as the result of being struck and run down by the cars on appellee's road. After the testimony was all introduced before the court and jury trying the case, the court instructed the jury to return a verdict for the railroad company, for the reason that the evidence showed that the appellant was guilty of contributory negligence. The question presented is whether the evidence was of such a character as authorized the court to withdraw from the jury the questions of the exercise of proper care and caution on the part of plaintiff, and to peremptorily instruct them that he was guilty of contributory negligence. The facts bearing upon this question are as follows: The appellant, when walking near the railway track in the yards of appellee's road in the city of Austin, was struck by a car which was then, with others, being pushed by an engine, and knocked down upon the rails, and his arm run over and crushed, and, as the result, it had to be amputated. The car that struck him came from behind him. It appears that that part of the track where he was walking when struck was frequently used by the public as a pathway, and that such use was known to the employés and servants of the appellee. Plaintiff, when walking near the track, heard a noise behind him, which proved to be an approaching car; and he thereupon stepped away from the track, and out of the reach of the car; and, after it had passed him, he again stepped back so near and in such close proximity to the track as put him in danger of being struck by a passing car. When the car passed him, and when he returned to the track, continuing his walk in the direction that he was going, he did not look back, in order to ascertain if another car or an engine was approaching him from behind, but continued to walk on the track until he was struck by the car that caused his injuries. This car, with others, was being pushed by an engine in the rear. When he returned to the track, and put himself in the place of danger, he heard behind him the puff of the engine, and supposed that it was going back, and not approaching him. He did not look in order to ascertain if this supposition was well founded, but continued to walk on the track until he was struck. The space between the car that passed him and the one that struck him was 30 or 40 feet. The accident occurred in the daytime, and there was nothing to prevent the plaintiff from seeing the approaching car behind him, if he had looked. After testifying about his walking upon the track, and the cars passing him, he says: "I didn't see those first two cars [which were the ones that passed him] until they got even with me. I heard a little noise, and stepped out of the path, and walked along until they passed; and, after they passed, I got back in the path again, and kept on my way until the car struck me. When I heard a little noise, I didn't turn around. I just stepped out of the path. As soon as the cars passed me, I got back in the path. When these cars passed me, I didn't turn and look around to see if any more were coming. I didn't stop to listen, and never did turn my head back at all to look. I heard the engine puff, and thought it was going back. It was broad daylight, and there was nothing to have kept me from seeing if I had looked. I have been about the yards of railroads a good deal, in different places. When I see a railroad yard, I know the purposes of its use is to switch cars up and down, and that this is constantly done, without regard to any schedule, and without regard to whether it is day or night. I never heard of any objection to people passing through the yards. I have seen people passing through all the time. I never asked permission of anybody to pass through there; didn't think it was necessary. I had been there twice before, and on those occasions, I had...