Texas & P. Ry. Co. v. Duncan
Texas & P. Ry. Co. v. Duncan
Opinion of the Court
(after stating the facts as above). Appellant presents the question in two views: One is that as a matter of law the company did not owe the protection to appellee to keep the pit covered, and the other is that the jury should decide whether that particular duty of keeping the pit covered was in fact a duty owing appellee. The appellee testified that:
“My duties require me to go around on the inside of the roundhouse and outside, around front and back. * * *In the discharge of my duties I kept .moving around through the roundhouse, first one place and then another.”
The court, in the eighth paragraph of the charge, in effect instructed the jury that in order to find for the plaintiff the company must have been negligent in leaving the pit open and uncovered, and such negligence must have resulted in injury to plaintiff. The court further instructed the jury that:
“The evidence in this case shows that the plaintiff was in the employ of the defendant and received some injuries by falling into an open pit, but this is not sufficient alone to justify you in finding a verdict in his favor. But if you find a verdict for him you must find that the railroad company was negligent, and that it neglected some duty it owed to the said Duncan. If you believe from the evidence that the defendant did not owe to Duncan the duty of keeping the pit, while ojoen, guárded or protected by lights or other warning signals, you will find for the defendant.”
It is concluded, that in the record the points made should not be sustained for reversal of the case, and that the assignments of error numbered 1, 2, 3, 5, 6, 8, and 11 should be overruled.
The question of the plaintiff’s negligence in failing to use the flash light furnished him was sufficiently submitted to the jury in the court’s charge, and assignments of error Nos. 4 and 7 are overruled.
As to whether the amount of the verdict is excessive depends on the extent of the injury and pain and suffering and lost time sustained by the appellee, and the award made by the jury is not without any evidence to warrant it. The assignments are overruled.
The judgment is affirmed.
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Case-law data current through December 31, 2025. Source: CourtListener bulk data.