Texas & P. Ry. Co. v. Hilgartner

• Decision Date: 06 June 1912
• Citation: 149 S.W. 1091
• Parties: TEXAS & P. RY. CO. v. HILGARTNER.
• Court: Texas Court of Appeals

149 S.W. 1091

TEXAS & P. RY. CO. v. HILGARTNER.

Court of Civil Appeals of Texas. El Paso.

June 6, 1912.

Rehearing Denied October 9, 1912.

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Action by W. B. Hilgartner against the

Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Peyton F. Edwards, of El Paso, and W. L. Hall, of Dallas, for appellant. Z. L. Cobb and M. Nagle, both of El Paso, for appellee.

HIGGINS, J.

This is an appeal by the appellant from a judgment in favor of appellee for damages resulting from a collision between an automobile car driven by the appellee and a railway train of the appellant. The accident occurred about 1 o'clock at night, in the city of El Paso, and at the intersection of Oregon and Main streets. The track of the Galveston, Harrisburg & San Antonio Railway Company, upon which appellant's train was being operated at the time of the accident, runs east and west upon Main street, and appellee was driving his car upon Oregon southward, and collided with the train of appellant, which consisted of an engine and several passenger cars, moving in a westerly direction; the engine being upon the eastern end of the train.

The first assignment of error complains of the refusal of the court to grant the petition for the removal of the cause to the federal court, but is not considered, for the reason that counsel in open court waived this assignment and requested the court not to consider same.

The third and fourth assignments complain of the refusal of the court to peremptorily instruct a verdict for the defendant, based upon the proposition that the testimony in the case conclusively shows as a matter of law that appellee was guilty of negligence directly contributing to the accident. These assignments are overruled. It is unnecessary for us to discuss the evidence in detail, but it is sufficient to say that under the testimony disclosed by this record the issue of contributory negligence was properly submitted to the jury.

The fifth assignment of error is that the court erred in overruling appellant's objection to the introduction of railroad rules Nos. 24 and 101. The rules referred to were certain private rules and regulations promulgated by the Galveston, Harrisburg & San Antonio Railway Company, and it was admitted that these rules were binding upon the appellant when it was operating its train upon the Galveston, Harrisburg & San Antonio tracks, and, as heretofore stated, appellant's train causing the injury at the time thereof was being operated upon the track of the Galveston, Harrisburg & San Antonio in the city of El Paso. The rules read as follows:

"24. When cars are pushed by an engine (except when shifting or making up trains in yards) a white light must be displayed on the front of the leading car by night."

"102. When cars are pushed by an engine (except when shifting and making up trains in yards) a flagman must take a conspicuous position on the front of the leading car and signal the engineman in case of need."

The objections urged are that they are irrelevant and immaterial and were not the law, were not made for the benefit of plaintiff or known to him or to the public, and that proof of the violation of the same, if any, would not establish or tend to establish that the servants of the defendant were not using due care in operating said cars, and that the introduction of such rules was calculated to injure the defendant.

Without discussing these objections in detail, it is sufficient to say that they were properly admitted in evidence, because they were rules made and promulgated by the Galveston, Harrisburg & San Antonio Railway Company for the government of its employés in operating trains within its yards so as to properly protect and avert injury to persons lawfully upon or crossing its tracks. It is immaterial whether they were made for the particular benefit of plaintiff or known to him or to the public, but was evidence of the proper precaution that should be taken in operating trains at the place this accident occurred, and the violation of such regulations would be a proper matter for consideration by the jury in passing upon the question of negligence.

The sixth assignment is as follows: "The court erred, in the fourth paragraph of its charge, in instructing the jury that it was, among other things, recited in said paragraph, `the duty of the railroad company in the movement and operation of its trains at night, to place or display a white light on the front of the leading car, and to place a flagman at a conspicuous place on the front of the leading car.'"

The first proposition urged in support thereof is that it was erroneous because based upon evidence that should have been excluded by the court. For the reasons just indicated, we are of the opinion that the rules upon which this portion of the charge is predicated were properly admissible in evidence. The further proposition is urged that it was upon the weight of the evidence....