Texas & N. O. Ry. Co. v. Brown

• Decision Date: 09 February 1893
• Parties: TEXAS & N. O. RY. CO. v. BROWN et al.
• Court: Texas Court of Appeals

21 S.W. 424

TEXAS & N. O. RY. CO. v. BROWN et al.

Court of Civil Appeals of Texas.

February 9, 1893.

Appeal from district court, Orange county; W. H. Ford, Judge.

Action by Georgia Brown and others, the widow and children of S. M. Brown, deceased, against the Texas & New Orleans Railway Company, for the death of decedent. From a judgment for plaintiffs, defendant appeals. Reversed.

Perryman & Gillaspie, for appellant. Hart, Chamders, Sholars & Prejo, for appellees.

GARRETT, C. J.

This suit was brought by the widow and children of S. M. Brown, deceased, to recover damages for injuries resulting in the death of said Brown, alleged to have been caused by the gross negligence of the servants of defendant in the operation of a switch engine on defendant's railway, and over a public crossing, in the town of Orange. Defendant pleaded contributory negligence on the part of the deceased. The accident occurred March 29, 1887. As the law stood then, the defendant was only liable for the "unfitness, gross negligence, or carelessness" of its servants. Sayles' Ann. St. art. 2899, and note. Defendant requested the court to charge the jury that the evidence was insufficient to establish gross negligence on the part of the defendant, its agents, servants, or employes, and to find a verdict for the defendant. The refusal of the court to give this instruction has been assigned as error. There is evidence tending to show that the switch engine was being run across the public street at the rate of about 15 miles an hour, and that no warning of its approach was given by the ringing of the bell on the engine, or the blowing of the whistle. It was admitted that there was an ordinance prohibiting the running of trains in the town of Orange faster than six miles an hour, and there was evidence that the blowing of the whistle was also prohibited by ordinance. From all the evidence in the case the jury might have found that there was gross negligence on the part of the engineer and fireman in the running of the switch engine that struck and hurt the deceased, and the charge was correctly refused.

But the question of contributory negligence, the fact of which is also raised by proper assignments of error, does not depend upon the freedom of defendant's servants from negligence. If the want of due care on the part of the deceased was the proximate cause of the injuries which resulted in his death, then the plaintiffs cannot recover, although the defendant's servants may have been guilty of negligence. Railway Co. v. Peay, (Tex. Sup.) 20 S. W. Rep. 57.

The evidence shows that just before the accident the engine had passed over the crossing, going east on the main track, and was returning, going west on the switch. Deceased had started on the usual...