Texas Supreme Court, 1891

Missouri Pacific Railway Co. v. McKernan

Texas Supreme Court · Decided November 10, 1891 · Fisher

17 S.W. 1057; 82 Tex. 204; 1891 Tex. LEXIS 1103 (South Western Reporter)

Counsel

Barnard Green, for appellants. — The evidence clearly shows that the plaintiff was guilty of contributory negligence in coming upon the track, that he was in splendid physical condition, that danger was imminent when plaintiff came upon the track, and that defendants could not possibly have avoided the injury to plaintiff. Plaintiff is therefore not entitled to damages. Hoover v. Railway, 61 Tex. 503 ; Railway v. Smith, 52 Tex. 178 ; Railway v. Bracken, 59 Tex. 74 ; Railway v. Richards, 59 Tex. 373 ; Railway v. Smith, 62 Tex. 252 ; Hughes v. Railway, 67 Tex. 595 [ 67 Tex. 595 ]; Railway v. Ryon, 70 Tex. 56 . L.F. Price, for appellee. — 1. The pleadings and evidence show gross negligence on the part of defendants' employes. Hays v. Railway, 70 Tex. 602 ; Railway v. Kuehn, 70 Tex. 582 ; Railway v. Crosnoe, 72 Tex. 79 . 2. Persons operating a railway train, seeing one upon the track in the direction it is going, have a right to presume that he will step off in time to avoid a collision; "but if he does not and is injured, then a case arises in which the jury must determine whether the injury resulted from the contributory negligence of the person injured or from the failure of the servants of the company to exercise due care under the circumstances." Artusy v. Railway, 73 Tex. 191 ; Railway v. Hewitt, 67 Tex. 480 ; Hays v. Railway, 70 Tex. 603 [ 70 Tex. 603 ].

Opinion of the Court

FISHER, Judge,

Section B.—Several errors are assigned which we will not notice, as we dispose of this case on the facts. We regard it unnecessary to discuss the rules of law that govern and control in cases of this character. They are so well settled in this State that no useful purpose could be gained in repeating them. We can not permit this judgment to stand. A careful consideration of the facts as shown in the record convinces us that appellee was guilty of contributory negligence in placing himself upon the track in front of the moving train, and that the servants of appellants under the circumstances used the degree of diligence necessary to avert the danger and to prevent the injury.

We report the case for reversal.

Reversed and remanded.

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