Texas & P. Ry. Co. v. Gay
| Decision Date | 28 November 1896 |
| Citation | 38 S.W. 533 |
| Parties | TEXAS & P. RY. CO. v. GAY.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from district court, Midland county; William Kennedy, Judge.
Action by J. Y. Gay against the Texas & Pacific Railway Company for personal injuries. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
B. G. Bidwell, for appellant. W. H. Cowan, for appellee.
Conclusions of Fact.
Appellee, Gay, recovered damages for personal injuries received at Midland, Tex., about December 13, 1895. The accident occurred at appellant's stock pens, about one mile east of the station, while appellee was engaged in assisting appellant's yard foreman, John Tolbert, in unloading several cars of cattle. Tolbert, having authority to employ and discharge hands, had employed appellee for that one day, and placed him between the main and side tracks, which were six or eight feet apart, equipped with a prod pole. While a couple of cars, which had just been unloaded, were moving east on the side track to make room for others to be unloaded, appellee stepped back towards the main track, to keep out of the way of these cars, looking in the direction the cars were moving; and in doing so got so near the main track that the east-bound passenger train, which soon came along, struck him or his prod pole, inflicting the injuries complained of. That appellee, had he not been looking in the opposite direction, might have seen this train in time to have avoided the collision is clear, and it seems equally clear that he did not see it or hear it till he was struck, or just prior thereto. As to whether any signal was given of its approach, the evidence was conflicting. There was also conflict as to whether appellee was struck directly by the engine or only by the prod pole; appellee's testimony tending to sustain the former, and that of appellant the latter, theory. Appellee's evidence tended to show, not only that the passenger train operatives were negligent in not giving any signals of the approach of that train, which was moving at the rate of 15 or 20 miles per hour, but also that they failed to use proper care to avoid the collision after discovering that appellee's danger was imminent. On the other hand, appellant's evidence tended, not only to rebut these conclusions, but also to show that appellee failed to use proper care for his own safety, after being apprised of the danger he was in. The evidence, however, justified a contrary finding.
Conclusions...
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