65 Tex. 115 | Tex. | 1885
The first assignment of error complains of the action of the court in overruling appellant’s motion
- The second, third and fourth assignments, question the correctness of the court’s charge to the jury. The part of the charge specified is in the following language: “But, if the collision took place after one o’clock and twenty minutes, and number nine was running without flagging its train, then the plaintiff is entitled to recover, provided he makes proof to your satisfaction of those facts, which in a former part of these instructions you have been informed he must prove to entitle him to recover at all.”
The plaintiff was fireman on train Ho. 10, which was not authorized to leave Hallville, on its eastward journey, until twenty minutes after one o’clock on the morning of December 6, 1881. The westbound train, Ho. 9, was due at Hallville at fifteen minutes after one o’clock on the same morning. On that morning the two trains collided about one mile, or one mile and a half, east of Hallville, and there the plaintiff received his injury. Defendant’s rules required Ho. 9, if it was not on time, to send a flagman ahead nine hundred yards, and travel slowly to prevent collisions. The east-bound trains had the right to the track, and hence this caution was required of Ho. 9, which, was bound west. These were undisputed facts. From them it necessarily follows that if the collision occurred after Ho. 9 was due at Hallville, Ho. 9 ought to have had out the flagman. If the failure to have out the flagman was the cause of the accident, and the unfitness of the conductor and engineer on Ho. 10 caused this failure, and their unfitness was unknown to the plaintiff, and was known, or would, by the use of reasonable care, have been known to the defendant, then the defendant was liable. This is precisely the-theory presented in the charge of the court below. It was proven by the defendant that if Ho. 9 was late it should have sent out the flagman for the very purpose of preventing a collision. The rules of defendant required this duty of Ho. 9. To charge that a breach of that admitted duty was negligence was not a charge on the weight of evidence. But it is claimed that the liability of defendant ought to have been made to depend upon the time when Ho. 10 left Hallville. In the theory presented by the court below in the charge,
The fifth assignment of error is that “the court erred in refusing to give the several special charges asked for by the defendant.” Four special charges were requested and refused, and it has already been held several times at this term that such an assignment of error is not in accordance with law and will not be considered.
The last assignment of error, the sixth, is that the court erred in not granting defendant’s motion for new trial. This assignment has not been considered, as it is manifestly too general.
There is no error in the judgment and it is therefore affirmed.
Affirmed.
[Opinion delivered November 13, 1885.]