Texas & P. Ry. Co. v. Staggs
| Decision Date | 01 March 1897 |
| Citation | 39 S.W. 295 |
| Parties | TEXAS & P. RY. CO. v. STAGGS et al. |
| Court | Texas Supreme Court |
Action by Mrs. C. A. Staggs and others against the Texas & Pacific Railway Company to recover for the death of the husband and father of plaintiffs through defendant's negligence. From a judgment for plaintiffs, defendant appealed to the court of civil appeals (37 S. W. 609), which reversed and remanded the cause, and certifies the dissent of Hunter, J., to the supreme court. Reversal sustained.
Stanley, Spoonts & Thompson, for appellants. R. L. Carlock and J. E. Martin, for appellees.
The court of civil appeals for the Second supreme judicial district has submitted to this court the following certificate of dissent: "Assuming that J. W. Staggs was guilty of contributory negligence when run upon and killed by appellant's engine and train, was it or not correct for the court to charge the jury, in effect, that the widow and children of deceased would be entitled to recover, notwithstanding such negligence, if the train operatives after discovering Staggs upon the track between a quarter and a half mile in front of the moving train, failed to use the care of a person of ordinary prudence to discover, in time to prevent or lessen the injury, when he was in actual danger, and that he would not probably leave the track in time to prevent injury; as will more fully appear from the majority and dissenting opinions?" From the question certified and the opinions referred to we understand that the deceased was upon appellant's track, with a train approaching from behind him, under such circumstances as made him chargeable with contributory negligence in not discovering the approaching train, and in not leaving the track. The persons who were operating the train saw the deceased upon the track when he was between a quarter and a half mile in front of the train, after which the employés of appellant failed to use ordinary care to discover that the deceased would not leave the track in time to prevent injury to him, and did not discover his peril when it arose in time to stop or slacken the speed of the train so as to prevent or lessen the injury. The district judge at the trial charged the jury, in effect, that the widow and children were entitled to recover under such state of facts, and the question of law submitted for our consideration is, Did the district court commit...
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...loose was an indispensable predicate for relief upon that issue. T. & P. Ry. v. Breadow, 90 Tex. 26, 36 S. W. 410; T. & P. Ry. v. Staggs, 90 Tex. 458, 39 S. W. 295. In the absence of some prima facie showing of such discovery, no inference could be indulged in plaintiff's favor from appella......
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...thereafter, by the exercise of ordinary care, to avoid injuring him. Railway Co. v. Breadow, 90 Tex. 27, 36 S. W. 410; Railway v. Staggs, 90 Tex. 458, 39 S. W. 295; Railway v. Shetter, 94 Tex. 196, 59 S. W. 533; Cardwell v. Gulf Ry. Co., 40 Tex. Civ. App. 67, 88 S. W. 422, and other decisio......
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