194 S.W. 1159 | Tex. App. | 1917
"Ordinarily," said the Supreme Court in Sanches v. Railway Co.,
"The general rule," says Mr. Elliott, "is that it is negligence for a traveler to attempt to cross closely in front of an engine or train which he sees or knows is approaching the crossing, for a person who knows of danger is under an obligation to refrain from incurring it and endeavoring to avoid it upon a calculation of chance. Where a train is at such a distance as that an ordinarily prudent man would, without hesitation, attempt to cross the track, it may be that there is no negligence. But where an attempt to cross in front of an approaching train is voluntarily made upon a nice calculation of chances, the person making the attempt will be regarded as negligent if he undertakes to proceed upon the assumption that he has correctly calculated the chances of crossing in safety and is thereby injured."
That appellee would have won in the race he ran with the train, and have gotten safely across the track, as he testified he would, but for negligence on the part of appellant in leaving the spike projecting up from the crossing, causing him to fall, we think is of no importance in determining the nature of his act. The attempt to cross as he did would have been a perilous one had there been no obstruction of any kind on the crossing, and the fact that he might have succeeded in crossing without hurt to himself had he not fallen would not render his attempt less hazardous, viewed as it should be from his standpoint at the time he acted.
The judgment will be reversed, and judgment will be here rendered that appellee take nothing by his suit against appellant.