115 S.W. 73 | Tex. App. | 1908
This is a suit, brought by the appellee against appellant, to recover damages for personal injuries alleged to have been inflicted by the negligence of the latter.
Plaintiff alleged, in substance: That, on October 25, 1907, while in the employment of defendant as a section hand and in the performance *567 of the duties of his employment, at work on defendant's railroad track near Kouns, Texas, one of defendant's engines operated by its servants was moved towards him at a high rate of speed and, before he knew or became aware of its approach, he was struck by the engine and thrown violently to the ground and thereby injured; that defendant's servants operating the engine were negligent in that, (1) they failed to keep a lookout and discover plaintiff in time to have avoided his injury, which they could have done by the exercise of ordinary care; (2) that they failed to warn plaintiff of the approach of the engine so that he could have reached a place of safety; and (3) that they discovered plaintiff upon or near the track in a perilous position, and after making such discovery, they failed to use ordinary care to prevent his injury, which they could have done by stopping the engine or reducing its speed; that by reason of having been struck and knocked down by the engine, through such negligence of defendant's employes, as the proximate cause thereof, he was injured in the back, spine, shoulders, chest, heart, kidneys, lungs, stomach, nervous system, bladder, arms and legs, all of which injuries are of a permanent character, in consequence of which he has been damaged in the sum of $10,000.
The defendant, after interposing general and special exceptions to plaintiff's petition, answered by a general denial, and pleas of contributory negligence.
The trial of the case resulted in a verdict and judgment in favor of the plaintiff in the sum of $1,500.
Conclusions of fact. — We conclude that the evidence reasonably tends to prove that while plaintiff was in defendant's employment as a section hand and at work, shoveling sand from its railroad track in obedience to the orders of his foreman, one of defendant's engines approached from the rear, his face being turned from the direction of its approach, and he, being intent upon his work did not see or hear the approaching engine, nor have notice or warning thereof, was struck, knocked down and injured thereby; that defendant's employes were guilty of one or more of the acts of negligence alleged in plaintiff's petition, and that such negligence, unmixed with any negligence on his part contributing thereto, was the proximate cause of his injuries, by which he was damaged in the amount assessed by the verdict.
Conclusions of law. — 1. The court having sustained defendant's objections to the remark made by plaintiff's counsel in his closing address and instructed the jury to disregard it, we must presume the jury heeded the court's instruction and that the remark did not affect the verdict. (San Antonio Traction Co. v. Parks,
2. When all parts of the charge which have reference to the subject matter of that part complained of by the third assignment of error, are read and considered together (as must be done, Rost v. M. P. Ry. Co.,
3. To have given defendant's special charge No. 2, the refusal of which is complained of by the fourth assignment, would have deprived the plaintiff of any right he may have had of recovery on the ground of discovered peril, which is not affected by contributory negligence. (Texas P. Ry. Co. v. Breadow,
4. Our conclusions of fact dispose of the fifth assignment of error adversely to defendant.
There is no error in the judgment and it is affirmed.
Affirmed.
Writ of error refused.