Texas & N. O. Ry. Co. v. Crowder
| Decision Date | 18 March 1890 |
| Citation | 13 S.W. 381 |
| Parties | TEXAS & N. O. RY. CO. <I>v.</I> CROWDER <I>et ux.</I> |
| Court | Texas Supreme Court |
W. N. Shaw and S. R. Perryman, for appellant. F. F. Chew and W. P. Hamblen, for appellees.
Mary Crowder, joined by her present husband, sued appellant for damages resulting from the death of her son, George Cohn, a minor, which, it is alleged, was caused by the negligence of appellant, while Cohn was in its service as a brakeman. There was a verdict and judgment for appellees for $1,000, from which this appeal is prosecuted.
The only question raised by the assignments, necessary to be considered, is as to the sufficiency of the evidence to support the judgment, and whether the charge requested by the appellant, in effect, instructing the jury to find a verdict for the defendant, should have been given. Three appeals heretofore prosecuted in this cause by the appellant will be found reported, respectively, in 61 Tex. 262, 63 Tex. 502, and 70 Tex. 222, 7 S. W. Rep. 709. With respect to the facts of this case upon a former appeal, it was said by Chief Justice STAYTON that "the evidence does not show what was the action of the deceased at the time he was injured, nor so develop the facts as to show that he was in the exercise of due care," and again, that "the true rule, in this class of cases, is that the servant seeking to recover for an injury, takes the burden upon himself of establishing negligence on the part of the master, and due care on his own part." 63 Tex. 503. The only difference at all material between the testimony upon the previous appeals of this cause and that contained in the record before us is that a witness, Eli Burge, for the first time, testified upon the last trial as follows: ...
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...of establishing negligence on the part of the master, and due care on his own part.'" (Italics ours.) See, also, Texas & N. O. Ry. Co. v. Crowder, 76 Tex. 499, 13 S.W. 381. If that were still adhered to as a correct statement of the law, consistency would require the holding that a plaintif......
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...defendant. The plaintiff should fail, not, as seems to have been assumed in some of the older cases, of which Texas & N. O. Ry. Co. v. Crowder, 76 Tex. [499], 500, 13 S.W. 381, is a type, because he must exclude the assumption of contributory negligence of the person injured, but because he......
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