109 S.W. 918 | Tex. | 1908
The defendant in error recovered a judgment against the plaintiff in error for personal injuries alleged to have been caused by the negligence of the servants of the latter. The judgment was affirmed by the Court of Civil Appeals and we have granted a writ of error.
The facts of the case are as follows: The plaintiff had occasion to pass between two railroad tracks of the defendant company, which was in common and general use by the public as a passway. As he entered upon the way he looked for trains and discovered a passenger train coming out of the depot in an opposite direction from that in which he was going, on one of the tracks; he saw no train on the other track. Seeing, as he testified, steam issuing in a considerable volume from the engine of the approaching train, in order to avoid it, he swerved from the direct course and approaching the other track he was struck by a stock car which was being propelled backwards on the other track and was knocked down and injured. The case was submitted to the jury solely upon the ground of discovered peril and the jury having found that the servants of the company discovered that the plaintiff was in a perilous position or about to enter into such position in time to have avoided the injury by the means at their command, we can not reverse the judgment if there be any evidence to justify the verdict. Being now of the opinion that there was some evidence to justify the jury in finding that the servants of the company discovered that the plaintiff was about to go into a place where he would be in danger of being struck by the cars, in time to have avoided the injury by means within their power, we deem it a profitless task to discuss the question. The Court of *513 Civil Appeals have in their opinion pointed out and as we think successfully the testimony which authorized the jury's finding and we are content to refer to it in confirmation of our conclusion.
The other assignments of error were also correctly disposed of by the Court of Civil Appeals.
Therefore the judgment of the District Court and that of the Court of Civil Appeals are affirmed.
Affirmed.
