76 Tex. 73 | Tex. | 1890
This suit was brought by the surviving’ widow and two children of John Dean to recover damages for his death,, caused by his being run over by one of defendant’s trains.
The defendant pleaded a general denial and contributory negligence.. There was a judgment on the verdict of a jury for plaintiffs.
The errors assigned relate only to the refusal of the court to grant defendant a new trial upon the following grounds:
1. Because there was no evidence showing negligence on the part of defendant.
2. Because the evidence shows that the death of the deceased was caused solely by his own want of care.
The statement of facts shows that the injury occurred on a switch that had been run out from defendant’s road at a saw mill, for the purpose mainly of loading lumber from the mill. The switch was about eleven hundred yards long, extending from the main track to a planing mill, and was straight, except that it was slightly curved where it joined the main track.
On the day that the injury occurred the conductor had left the train, and some cars were 'being moved on to the side track. The cars that caused the injury had on them a brakeman. The engine had been detached from them, and they had been kicked on to the switch, the engine not following them. The brakeman at the moment of the injury had turned his back toward the direction that the detached cars were going, to draw the coupling pin. He testified that before he turned for that purpose he was looking ahead and saw no one on the track.
The evidence is conflicting as to how fast the detached cars were being propelled. The weight of it was that the speed was much greater than was usual. The station engine had been blown on the arrival of the train, but had not been before or during the time the switch was being made. The mill machinery was making a louder noise than did the detached cars that were going past the mill. The work of the deceased, when he was filing saws, also made a noise which would drown that of the approaching cars. There is some evidence that the view of the switch track in the direction of the main track from whence the detached cars were coming was somewhat obscured to a person standing in the door of the file house, but none that the view would be obscured to a person advanced a few feet from the door toward the switch track.
G-ordan, a witness for plaintiffs, testified, “I saw Hr. Dean when he was struck. He came out of the file room; just as he got on the rail the cars struck him. Two cars passed over "him. Mr. Dean came out of the file room, going toward the mill across the track when the train struck him. Mr. Dean’s business called him back and forward across the track; other men cross it also; they have to use it to get to the mill. It is commonly used by the men passing backward and forward. Mr. Dean was coming right straight across the track. He could have seen the train if he had looked up the track after he got out of the house. The cars struck him just as he got to the fireman’s rail—that is, .the rail nearest the file room; the cars struck him just as he got his foot across the rail.. He was struck by the body of the car on his shoulder. I don’t know whether or not he had both feet over the rail. The cars were very close to him when he got on the track. He could have seen the cars from the file room door if he had looked up. He was not looking that way. He was looking toward the mill.”
This evidence is not contradicted. But one conclusion can be drawn.
It may be conceded that the manner of propelling the cars was, under the circumstances, an act of negligence upon the part of the defendant, and yet it must be held that the deceased exercised no care, and that his own want of it was the immediate cause of his injury.
There is nothing in the record to indicate that after it became evident that he was going to place himself in a position of danger, it would have been possible for the defendant, by the use of any degree of skill or watchfulness, or by the use of any known appliances, to have stopped the cars in time to have saved him.
The fact that on account of the noise of the mill he could not hear the approach of the cars can not be held to excuse him from the duty of using his eyes to see them. If anything, it emphasized that duty.
We think the defense of contributory negligence was sustained by the evidence without there being anything to the contrary.
For the error of the court in overruling defendant’s motion for a new trial, the judgment is. reversed and the cause is remanded.
Reversed and, remanded.
Delivered February 11, 1890.
