Texas & N. O. R. Co. v. Solgaard

Decision Date18 January 1951
Docket NumberNo. 12070,12070
Citation236 S.W.2d 673,238 S.W.2d 186
PartiesTEXAS & N. O. R. CO. v. SOLGAARD.
CourtTexas Court of Appeals

Baker, Botts, Andrews & Parish, of Houston, and Armstrong, Barker, Bedford & Lambdin, of Galveston, for appellant.

Markwell & Stubbs, of Galveston, and Critz, Kuykendall, Bauknight & Stevenson, of Austin, for appellee.

MONTEITH, Chief Justice.

This is a second hearing before this Court of an appeal in an action brought by Nils Solgaard, a Norwegian seaman, who was injured by a train of freight cars operated by appellant, Texas & New Orleans Railroad Company, being pushed along a public street in the City of Galveston. A statement of the facts found and the issues presented on the trial of the case are fully set out in the former opinion by this Court at 223 S.W.2d 665, 668, and in the opinion of the Supreme Court of this state, reversing the action of this Court, at 229 S.W.2d 777.

In the trial court judgment was rendered in favor of appellee in the sum of $47,500, based on a jury verdict that appellant had been negligent in operating the train which injured appellee in failing to keep a proper lookout, in operating the train without adequate lights, and in failing to give an audible statutory warning of its approach. The judgment of the trial court was reversed and remanded by this Court largely on its conclusion that the appellant was entitled to have its affirmative defenses of contributory negligence which had been refused by the trial court submitted to the jury in the form of special issues. This Court found in its opinion that oppellee had testified that he saw the train when it was 90 to 100 feet away and further found that 'Under appellee's testimony, it is apparent that if he had not been prevented from keeping a proper lookout by the fact that he had stumbled and fallen while crossing the track on which he was injured, he would have discovered the approaching cars in time to have avoided being struck, and that under the facts the absence of lights on the boxcars and the warning of their approach could not have been a proximate cause of appellee's injures, * * *.' The Supreme Court reversed the judgment of this Court and remanded the case for consideration of all assignments there presented, which had not been passed upon by it or this Court in its former opinion, including those relating to the effect of the evidence as...

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  • Texas & N. O. R. Co. v. Solgaard
    • United States
    • Texas Supreme Court
    • April 4, 1951
    ...in that court-and which were not passed upon in its original opinion. In its opinion affirming the judgment of the trial court, 236 S.W.2d 673, the Court of Civil Appeals stated we had decided that the trial court was not in error in overruling the petitioner's motion for an instructed verd......

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