Texas & P. Ry. Co. v. Moore

Decision Date06 November 1897
Citation43 S.W. 67
CourtTexas Court of Appeals

Appeal from district court, Taylor county; T. H. Conner, Judge.

Action by Henry Moore against the Texas & Pacific Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

B. G. Bidwell, for appellant. A. S. Hardwicke and Cockrell & Hardwicke, for appellee.

Conclusions of Fact.


This appeal is from a judgment in the sum of $1,370.90, recovered by the appellee from the appellant, as damages on account of personal injuries. The injuries were sustained either on the 30th or 31st day of October, 1895, while the appellee was riding on a caboose attached to appellant's freight train. The appellee was a district road master on the track and way department of the appellant. The verdict establishes the fact, which we accordingly find, that the injuries were due to the negligence of the appellant.

Conclusions of Law.

1. The suit was instituted on October 30, 1896. The defendant interposed the defense of one year's limitation. If the injuries were sustained on October 30, 1895, and if that day should be included in computing the time within which the action should have been brought, the defense should prevail. The court instructed the jury that, in computing this time, the day upon which plaintiff's injuries occurred should be excluded. We approve the view entertained by the court. Smith v. Dickey, 74 Tex. 61, 11 S. W. 1049; Hunter v. Lanius, 82 Tex. 680, 18 S. W. 201.

2. The court gave the following special instructions, the first at the request of the defendant, the second at the request of the plaintiff: (1) "If you find from the evidence that the plaintiff, at the time he claims to have been injured on the train of defendant, was an employé of defendant, and, as such, was riding on a freight train going to or about his duty as such agent, he took and assumed all the ordinary risks usually attendant upon the handling of freight trains, including the usual jolting and jarring of the train when being stopped by the use of air brakes; and, if you find that the train was handled with reasonable care for handling a freight train, he cannot recover." (2) "You are instructed that plaintiff did not assume any but the ordinary risks incident to traveling on the freight train. If plaintiff was injured, if you find he was injured by reason of the negligence, if any, of defendant or its agent in charge of the train, you will find against defendan...

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3 cases
  • Nebola v. Minnesota Iron Company
    • United States
    • Minnesota Supreme Court
    • July 19, 1907
    ... ... until the day following; for the first day, or day of the ... injury, must be excluded. Texas v. Moore (Tex. Civ ... App.) 43 S.W. 67; Louisville v. Watson, 90 Ala ... 68, 8 So. 249 ...          If the ... statute or rule be ... ...
  • Payne v. Wittenberg
    • United States
    • Texas Court of Appeals
    • February 28, 1922
    ...now be governed thereby. In the cases of Smith v. Dickey, 74 Tex. 61, 11 S. W. 1049 and authorities there cited, Texas & Pacific Ry. Co., v. Moore (Tex. Civ. App.) 43 S. W. 67, decided in 1897, in which a writ of error was denied, and Standard v. Thurmond (Tex. Civ. App.) 151 S. W. 627, it ......
  • Purcell v. Texas & P. Ry. Co.
    • United States
    • Texas Court of Appeals
    • November 20, 1897
    ...Tex. 81; Gainer v. Cotton, 49 Tex. 101; Smith v. Dickey, 74 Tex. 61, 11 S. W. 1049; Railway Co. v. Moore (recently decided by this court) 43 S. W. 67, and cases cited. Indeed, the appellees do not seem to controvert this. They insist, however, that appellant is bound by his allegations that......

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