Texas & New Orleans Railway Co. v. Crowder

HOBBY, Judge. Mary Crowder, joined by her present husband, sued appellant for damages resulting from the death of her son George Cohn, a minor, which, it is alleged, was caused by the negligence of appellant while Cohn was in its service as a brakeman. There was a verdict and judgment for appellees for $1000, from which this appeal is prosecuted. The only question raised by the assignments necessary to be considered is as to the sufficiency of the evidence to support the judgment, and whether the charge requested by the appellant, in effect instructing the jury to find a verdict for the defendant, should have been given. Three appeals heretofore prosecuted in this cause by the appellant will be found reported respectively in 61 Texas, 262; 63 Texas, 502; and 70 Texas, 222. With respect to the facts in this case, upon a former appeal it was said by Chief Justice Stayton that “the evidence does not show what was the action of the deceased at the time he was injured, nor so develop the facts as to show that he was in the exercise of due care; ” and again, that “ the true rule in this class of cases is that the servant seeking to recover for •an injury takes the burden upon himself of establishing negligence on the part of the master and due care on his own part.” 63 Texas, 503. The only difference at all material between the testimony upon the [502] previous appeals of this cause and that contained in the record before us', is that a witness, Eli Burge, for the first time testified upon the last trial as follows: “ I did not see how George Cohn was hurt. When I saw him he was sitting on the main track on the end of a tie; he was hurt on the south track. To the best of my judgment it was between ten and twelve-minutes after he was hurt before I saw him. When I got to him I found, him sitting on a tie about four or five feet from where he was hurt. I suppose it was about two or three feet from one tie to another between the tracks. The rails of the two tracks were about four feet apart. His. leg was run over and cut off above the ankle. It was his left leg. I saw signs indicating how he was hurt; saw blood on the rail and tie and on the flange of the wheel of a car opposite to him, and I saw a foot, track right down alongside of this bloody tie, in the angle between this, tie and the inside of the rail. It seemed to me it was where Cohn put his foot down inside the track between the tie and rail. The track of the-railway was unfilled at this point; the top of the tie was from eight to-nine inches above the surface of the ground, and the top of the rail is. five inches above the tie. There was blood on the rail and on the tie-above the foot track.” Ho reasonable construction of this testimony as to “the facts surrounding and leading to the accident” will authorize the conclusion or inference-that the negligence of the appellant contributed to the injury, and that there was due care exercised on the part of the injured party, which under the rule laid down in this case heretofore was held to be essential for the appellee to establish to entitle her to a recovery. See Railway v. Crowder, 63 Texas, 504, 505. Under the facts of this case as now presented we think the charge requested instructing the jury to find for the defendant should have been given; and if upon another trial the evidence is of the same character as-that now before us, a charge such as was requested in this case should be given. Because it was not given, we think the judgment should be reversed and the cause remanded. Reversed and remanded. Adopted March 18, 1890.