154 S.W. 1060 | Tex. App. | 1913
It was no part of the duty of the brakeman to listen to and understand conversations between parties about to get on the train; and, if he did not in fact hear and understand what appellee said to his wife, the fact that appellee made such statement did not render it incumbent upon appellant to hold its train for appellee to get off. The evidence shows that none of the other members of the train crew knew of appellee's intention in this regard; nor did any of said crew know of appellee's intention to jump off the moving train, nor that he had done so until they reached the next station.
2. Appellant assigns error upon the court permitting appellee to testify that at the time he jumped off the train he thought he could do so in safety. In Railway Co. v. Miller,
3. Appellant assigns error upon the *1062
following charge of the court: "If you believe that the plaintiff went upon said train with his said wife and family to assist them in going upon said train, with the knowledge of the defendant's brakeman, but you further believe that the plaintiff in jumping or stepping off said train failed to use ordinary care in so doing, and that such failure, if failure there was, to use such ordinary care, caused or contributed to cause his injuries, if any he received, then you will find for the defendant, although you may believe that the defendant was guilty of negligence as alleged by the plaintiff, and submitted to you in a former paragraph of this charge." The criticism as to this charge is that it does not instruct the jury that appellee would be guilty of contributory negligence if a reasonably prudent man would not have jumped off the train under the circumstances that he did, but only that appellee was required to use ordinary care in jumping off the train. It matters not how much care he used in jumping from the train, if it was negligence in him to jump at all under the circumstances; and we think the charge is subject to the criticism made by appellant in this regard, especially as nowhere in the charge does the court instruct the jury that the test was whether or not an ordinarily prudent man would have jumped off the train under the circumstances under which appellant did so. Railway v. Highnote,
For the errors above indicated, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.