Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-01-24

only be necessary fOf them 70 show Vrd'nnfy
negligence o. lts par. pss''TfYV y 1870.
Ut al. decided by us ~ tue present terint
That II is the duty Of railway company
20 adopt well tested inventions ana itn-
proyements for the protection OF pcisOns
lawfully upon its track az highway cross
ings, we think there can be no question.
Mr. Fierce. Ia his excellent work on rail-
r5mpany ~ avail itself of well tested ia
ventions and improvements which mite
rally contribute 90 safety has been much
considered with reference % ts passsehs1,tsi
persons rightfuly using on crossing its
track. Thus II should usu tie brakes which
are found 10 be the most eiheient for stop
ping trains. N, therefore, the jury. unler
proper Instructions, should hnd that de-
censcT was not ChargoAble with COutrihutury
negligence iu being upon appellees track nc
tho time hc was run over 10y It's car. and
appellee was guilty OF ordinary negligence
in permitting the use Of said cur uudcr the
rules of law herein indicated, and this neg
llgcucc WAS the proXimnte cause Of the
death 10 would be liable therefor. The prOXi-
uutc cause OF AN Injury " ordinarily q
question for the jury, ana Il is very dit-
hcmt 20 give definition which VIII apply
10 all eases. In the Ease OF Jones vs..
George. 81 Texas, 3j2, I'm quoting from
Milwaukee. ctc., Railway ". Kellogg. ~
L. g. Az, ID Is said 1T ~ generally held
that I'm order 10 warrant finding that neg
ligcuce Us the prONimat cause OF an injury
10 must appear that the injury was the
natural and probable consequence Of the
Negligence Of wrongful act ana that 10
ought To have been fOreseen IN the light NJ
the attending circumstances The dehni-
ton given by the court 10 its charge Is
perhaps subject 10 criticism when 10 tested (;
hut IN The connection Ia which IL was
given it furnished no cause Of complaint TO
appellants being iu their favor and not
10 their injury.
Iu deciding whether or not dcceaaed was
guilty " cUutrlbutOry negligence In being
caught upon the track Of appellee. several
important questions are presented. lu tho
hrst place is negligence on lhe part Of the
| hlmt II the Jury should find that deceased
unu his father Wer" engaged ll Joint uu.
deriahinR II is settled in this state thut
each would De- responsible for the negligence
Of The other. halfway ". Rutac. ~ Texas.
bl3. Aud without undertaking tu review
the numerous cuSes IN this country discuss.
! lug the noted English ease Of ThOrogOOd w..
| Bryan, Nth &. T.. 10, we think Il Is fairly
dedurlhlv from the authorities that n dee
ceased was blind 80 uS tO Dee unable tO take
care Of himself and of his own vUlition
couhded himself tu the care 81 his father.
tue negligence " such custodian should be-
! Imputed 90 hluI, iu such case hp would De
W. agent For full discussion Of the ar.
fcrcnt cases upon this Interesting question
see Beach ON Conrtibutory NEGLIGENCE. com.
mrnciug az section lu3; also note ~ Gray
w. Railway, - am, ana ng. Railroad eases,
commencing on page 30.
In deciding as to whether on NOT Gcorgc
johnson was guilty Of negig cucr la attempt
NIX to- cross the track IN front VI the ear.
u Will De necessary for the Jury. under
proper Instructions. 10 take into cuusidern-
ton all the attendant circrtBstuupes sucl
| az the distance the cur was FROM the ,i,,4z.
! ing ut the time the attempt was made. the
| speed ut which 10 was coming; and also.
| the Kind Of the car. The Jury might ind
| thAt person would De Justified iu attsmpt-
| ms 10 cross IN front of % huId car when
| hr would NOT be Justified undpr the sam,
| circumstances were tue car being drawn by
va - II III d
| II II Doe found chat there was time tn cross
| IN" track iu safety under ordinary cir,riu.
Stances would seem that johnson should not
De charged with COutrhutury negligence
| FOR tuilnrc 10 anticipate am unusuaI ncrrr.
| renee. such us failing upon the track. nm
] less there was reason To anticipate such
| in5il.liR from I9s surrounding cirrum"anr y.
lltlrt ON lullroudH, N1; - Woods Rail.
way Law. 1874. Ia this state &C is hcIl
| lhhl even where person r. Wrpngtully ON
| inc track, " an unforeseen accident ur
! prpNidrutal cause lutcrycnCs which retains
! him there his negligence On going uuou
] the track VIII hg dCpWcd the remote nbd
| not the proNlmate cause OF his Injuries.
! ANA he viii not thereby be- prcCludri srDm
| recovering. Htallway VS.. Slmpkms. "a
! IeNns, Olh; Roberts vs.. Railway SUPRA.
! IT. therefore. the jury should hud that had
| u nor bStu t9r the horse pulling the de-
| ceased on " the wagon the crossing would
| nave be,n made IN safety, ana that II WINS
| u"l negligence on the pnrt ~ tho driver
To anticipate this result, and appellee was
| hJ ~ servants OF an improper car or THAT
| app,lee's servants were guilty OF gross
! negligence, uud that such negligence ON the
| part OF the appellee or its servants was thp
! ptuSinute cause " the Injury: and should
| such finding be- sustained hy the evidence
We think appellants would be entitled To
| recover.
| Appellants present number OF assign.
! mrhts calling I'm question the action Of he
| court below In the admission of evidence.
| IL II hardly probable that these objections
| WIN arise IN the same form upon another
| l1ul. Ihe evidence svcms to have been oil.
| tcred 10 impcach appellants witness, Gporvo
| Johnson, by showing chat he had made
| statements ont " court inconsistent will
| ms evidence given upon the trial We think
| the proper predicate was laid for most IN
| not all, of these questions. The law upon
/ the udml9slhlllty of this kind of evidence
| W So wen settled that there need be mo- or
] ror made ln ihr rulings upon this branch
! ~ the ease upon another trial without fnr-
/ thrt discussion from MS
We thnk We have already said suf.
] hcienuy To Indicate our views unon tl,. Other
Questions raised by appeliants assignment
! uf error '
Let Che Judgment of the court below bc rc.
| NEfSeu lni NE cause rouiaudcd for a now
| trial lSgncdl
HEAD, Associate Justice.
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