119 S.W. 128 | Tex. App. | 1909
The plaintiff in error brought this suit to recover damages for personal injuries which he claims were inflicted through the negligence of the servants of the defendant in error in striking him with one of its railway locomotives. The plaintiff was at a small station called Index on the defendant's line of railway near Red River, and, with others, desired to take passage on the southbound train for Texarkana. It was necessary to flag the train for that purpose, as trains did not make regular stops there. It was at night, and plaintiff procured a lantern, took his position on the track near the south end of the bridge across Red River in front of the house of the bridge watchman, about ninety feet north of the platform constructed for passengers to use in getting on and off of trains. When the train came in sight at a distance variously estimated at from 300 to 1,000 yards, plaintiff gave the signal, which was answered by the engineer, and then, according to his version, started down the center of the track to the passenger platform, and just as he was stepping on to the platform he claims that the pilot-beam of the engine, or some other part, struck him and caused the injury. At the conclusion of the testimony the court peremptorily instructed a verdict in favor of the defendant, hence this appeal.
The only question which we think it necessary to consider is the sufficiency of the evidence to require the submission of the issue of discovered peril. The railway track at that point is upon a high embankment sloping on each side at the usual angle assumed when dirt is allowed to fall and settle by its own motion. The top of the embankment is about twenty feet wide between the points where the slopes begin. On this had been deposited a layer of washed gravel to a depth of about twenty inches or two feet, and on this gravel were laid the ties and track. The gravel extended beyond the ends of the ties about three feet, and left a space between it and the shoulder of the embankment variously estimated at from two to three and a half feet in width. It was shown that a man could walk in this space without danger of being struck by a passing train, and that this was generally used by persons passing along the railway right of way. The testimony for the plaintiff in error shows that after flagging the train he started in *599
a run to the passenger platform, keeping in the middle of the track till he covered about three-fourths of the distance. He then got out on the ends of the ties on the side next to the platform and kept going in that position till he reached the platform step. There can be no dispute about his having been guilty of contributory negligence as a matter of law. To support the contention that the servants discovered his perilous situation in time to have avoided the injury, plaintiff relies upon the fact that there were no obstructions to the view of the trainmen; that it was their duty to look ahead at that point; and the further fact that his presence was discovered when he flagged the train, as evidenced by the answering signal of the engineer and the testimony of the fireman. The rule is well settled that in the absence of actual discovery and the appreciation of the peril the rule of discovered peril has no application. San Antonio Trac. Co. v. Kelleher,
Affirmed. *601