Texas & P. Ry. Co. v. Leighty

• Decision Date: 04 November 1895
• Citation: 32 S.W. 515
• Parties: TEXAS & P. RY. CO. v. LEIGHTY et al.
• Court: Texas Supreme Court

32 S.W. 515

TEXAS & P. RY. CO. v. LEIGHTY et al.

Supreme Court of Texas.

November 4, 1895.

Error to court of civil appeals of Fifth supreme judicial district.

Action by Mrs. E. A. Leighty and others against the Texas & Pacific Railway Company for injuries causing the death of E. A. Leighty. From a judgment of the court of civil appeals affirming a judgment for plaintiffs, defendant brings error. Affirmed.

Dillard & Muse, for plaintiff in error. Taylor, Galloway & McGrady, for defendants in error.

DENMAN, J.

On the night of March 23, 1892, Emmet A. Leighty, engineer of a freight train on the road of plaintiff in error, while running his engine along the main track, through the yard limits of Choctaw siding, ran the same against the tender of an engine that had been left standing partly on the main track and partly on a side track, connected with said main track by a switch, whereby his engine was overturned, inflicting upon him injuries resulting in his death. The tender had been left as above stated by Brown, a hostler at Choctaw switch, without any lights thereon to indicate its position, and the night was dark. Defendants in error sued for damages resulting to them from the death of Leighty.

On the trial, plaintiff in error introduced in evidence a rule which had been duly promulgated by it at its date, under circumstances charging Leighty with notice thereof, as follows, to wit:

                      "Texarkana, Texas, October 7th, 1891
                

"All Trains West Bonham—All Trains East Whitesboro. There has been a telegraph office established at Choctaw gravel pit, located just west of the tank. East-bound trains will bring trains to a full stop just west of this office, and will run from there to Choctaw siding with trains under full control. West-bound trains will approach Choctaw siding with trains under full control, and will run carefully between Choctaw siding and Choctaw pit telegraph office, expecting to find work trains using the main line. All trains will look out for signal board at Choctaw pit office.

                       "E. W. Campbell, Train Master."
                

Plaintiff in error requested the court to give the following charge: "The rule read in evidence before you, requiring all east-bound trains to come to a full stop just west of the telegraph office at Choctaw gravel pit, and to be run thence east under full control to Choctaw siding, was a reasonable and proper rule; and if you believe that E. A. Leighty, by the use of such care as under similar circumstances would have been exercised by a...