No. 1950. | Tex. App. | Apr 18, 1918
The appellant pleaded as a defense that at the time of the injury to the mule the driver of the team was using a portion of the premises not provided by the railway company as a crossing or approach to the platform or cars of gravel. And error is predicated upon the court's charge, reading, in part, as follows:
"You are further instructed that a person engaged in the lawful occupation of hauling material from cars placed on a railway track has a right to use the most reasonable and convenient approach to said cars, and is not required to use an unreasonable and inconvenient approach if a more reasonable and convenient approach is obtainable; and it is the duty of the railroad company to provide a reasonable and convenient approach if same can be done, and in determining this point you have a right to consider the condition of the tracks and grounds and the obstructions, if any, surrounding the cars to be unloaded."
The effect of the court's charge was to tell the jury that, if the way provided by the railway was not a convenient and reasonable approach to the cars to be unloaded, the plaintiff had the right to choose and use "the most reasonable and convenient approach to said cars." An obligation rests upon the owner of premises devoted to business purposes to take reasonable care to keep them safe for the protection of persons coming upon them. But this duty does not extend so far as to make the company responsible for the unsafe condition of those parts of the premises not intended for use by the public, and where they are not expected or invited to go. And unless there be a justifying necessity to escape from injury or a defect in the usual way provided, the plaintiff would have no right to use a way of his own selection. The charge, on the facts, was erroneous in authorizing the plaintiff to go a way of his own selection because it was "the most reasonable and convenient approach to said cars."
Judgment reversed and cause remanded.