Texas & P. Ry. Co. v. McGraw

207 S.W. 559 | Tex. App. | 1918

^* Writ of error refused, Mar. 5, 1919. The contentions presented by the assignments are: (1) That it did not sufficiently appear from the testimony that appellant was guilty of negligence as charged against it; (2) that, if it did so appear, it also appeared that appellee himself was guilty of negligence which contributed to cause the injury he suffered; and (3) that the judgment is excessive.

The negligence charged against appellant was that it failed to warn appellee that the engine was moving east on the track situated near the place where he was working. Appellant insists that because appellee knew that the engine had passed west on that track and was likely at any time to return east thereon, it had a right to assume that he would watch for and take notice of it as it moved back east, and that, having a right to indulge such an assumption, and having no notice that appellee did not know that the engine was moving east it did not owe him a duty to warn him of its approach. We do not think the contention should be sustained in the face, as it would have to be, of testimony in the record showing it to have been the custom of employés who accompanied engines moving on that track to warn appellee as same approached the place where he worked, not only as such engines moved west, but also as, when returning, they moved east. Appellee as a witness testified:

"When a car would come in from the east they would notify me they were coming by hollering at me. In coming back they would ring the bell or holler at me again. I was always notified."

We think the contention made that it appeared as a matter of law that appellee was guilty of contributory negligence also should be overruled. Appellee had a right to assume that the custom always before observed to warn him of the approach of an engine toward the place he was at work would not be discontinued without notice to him, and we do not think it can be said that he was guilty of negligence, as a matter of law, in acting on such an assumption on the occasion in question.

If the consequences to appellee of the injury he suffered were as serious as he testified, they were, the judgment is not excessive. Evidently the jury, as they had a right to, believed appellee's testimony; and we have found nothing in the record indicating the existence of a good reason why they should not have believed it.

The judgment is affirmed.