Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-01-15

pany. appellant. ". Louisa itnptIls ~ 49,
apnollces. Appeal from Cass county
OPINION,
This appeal Is from a verdict and judy
ment In favor Of the surviving VIC ame
children Of Newton IL. Roberts, WHO We
killed ON the oath of November, u.s. NY
one Of appellants north bound passchsei
nans within The 20 Iei ..bou, ig5' Yards
south az the public crossing, on OF near y
pathway usually travelled by fooimeh al p
some tlmcs by persons on iofse p a0
which ran diagonally across appellant tal.
road track The egideuce teuded 20 hhoW
that deceased Ind entered upon the Track
at the public crossing, when Was y We,tsNg
"a mule to about the place where ne WIS
Killed rhat this occurred about htteeh ulu
utes before the trun was 10 sishl' anl
that the homicide occurred about Unity
minutes aftt. sun down. Al THIS POM tue
railroad truck was Oh on emhahsment uuVul
| ten or Twelve feet high. and the deceaceu,
| when KILLED and for several minutes before
/ the train WAS in sight WIS engngeu ~
trying in vain, 10 lead his mule on ths
track and down the embank meht' anu
I seems to- have been entirely UNCONSCIOUS, OF
l thp aprruachiug train. The evidence tended
/ 10 show that the track was straight Tor
/ several hundred yards south of this poihl,
aud that iu approaching deceased lnc tfah
/ was running up grade. and the WITNESSES
vary iu their estimates of It's rate ot speed.
from fifteen To thlrty-hye miles per holls
! The deceased seems TO have been on nus
/ of two or three miles, aud TIE eNluthee
/ was conflicting ns To whether OF not ne
J 10 was also conflicting as TO the distance
/ he could have been seen 10y the engineer
/ just before he was killed. the lfan men
/ claiming that they did not see MIN, anu
/ could not have seen him ut greater us
/ tanCp than $50 feet on account ~ INC
| darkness. other eye witnesses testltyihB
! thar no could have been seen rs much as
/ 400 yards away. There WIS also a connict
AK tn the time when the bell rang ANA the
| whistle blew: one witness tcsthFmg lhAt
| It occurred nc the very Time Of the kuling,
| others testfying that IL occurred when tile
| train was from 30 to 10 yards dis
tant. There was also planning MIL thirty
| or forty yards east OF the place Of the
| accident though there were no other houses
! ncnrpr than about 300 yards. Tho evidence
| wus conflicting us 20 the distance the train
! was from the deceased when lac was hrst
/ discovered by the train mon, varying from
bile OF different constructions as TO the
| time the air brakes were applied The
| proof tended to show that the train. II run
| ming az thirty-hye miles per hour. could
| have been stopped within 100 feet: ana
| within about half that distance, II running
| at fifteen or twenty miles per hour De
ceased appears 70 have had an expectancy
| Of ~ years: To have been q prosperous FAR
mer. ginner and trader aud 10 have coniri.
/ buted about $1,000 annually Ia the support
OF his family. The amount of the verdict
! was $4,000 Appellccs charged the train
! operatives with negligence; 90 which up'
| npildtt replied WITH q genera htniNA uNW u
plea ~ coutrbntory negligence.
By the eighth assignment Of error appel.
lam complains Of the eleventh paragraph OF
the courts charge, which Is us follows:
III YOU believe from the evidence, that
Newton X. Roberts voluntarily placed him
self ON defendant company's railroad track,
and you further hnd, thar those IN charge
Of defendants engine, saw the said Roberts
ON the track. before IL reached him. but
failed To iuy the bell or blow the whistle
az sOou MS they saw him, In order 10 warn
IL TN.I.. n lao aftHh ~ nnt
then the defendants would he guilty or
negligence; and II you further ind that by
reason Of such negligence on the part OF
| the defendants employees, SAID Roberts was
struck by such engine, or train. and KILLED
then the piaintu would be entitled TO re-
cover"
tnins error. ID seems TO be- wei settled In
this state that negligence ls a question OF
fact Tor The jury aud That The court iH NOT
warranted Ia iLstructing thcm thar the fan
urp OF the train operatives 10 ring the bell
or blow the whistle as soon rs they zee
a man on the track in order to warn MIN OF
The approach Of tile trniu, would constitute
negligence. Calhoun W. lhc Railway com
pany, - Texas, 22d, Hallway w. Lee. 20
Texas. col Railway vs.. Anderson as
Texas, 30; Railway vs.. Dyer IB Texas,
1901
n Calhoun's case above cited Il Il said
"The court has the right 10 instruct the Jury
that it IL tile duty of the operatives uf the
engine In approaching a public crossing
Ia ring the bell or blow the whistler but 1t
Is a charge upon the weight of the evidence
! ~ Il instructs them that 60 perform. or the
. failure 60 perform this duty, shall be given
u certain effect" As THIS error In the
{ churge VIII require reversal OF the judg-
| ment. la view OF another trial, we invite
the attention ~ the trial court 10 the au-
, thOrties cited above with reference 10 other
portions ~ the charge of which both APP
peiamt ana appollecs might. under these de-
which, in the sixth assignment, appellant
does In part complain thrHe eases having
been reported since the ttiiu below
The ninth assignment OF error calls Ia
4 question the welith paragraph of the charge
4 which reads ns follows:
y ''If you believe from the evidence that tho
said Newton Il Roberts voluntarily uluctd
= himself on the defendants railroad track
u and You further believe frOm tho t-yldeur,
2 that al said time aud place lie was struck
/. aud killed ny one Of defendant company's
q engines or trains, but you further believe
u that those In charge Of the Defendants en-
p CINE ANA tram exercised proper care IN
looking 10 see whether or moi It's track WA
clear and that those IN charge OF the train
saw thc said Roberts ON or near the track
y IN 'front.' OF the train, or could have see,
him 10y diligently looking vat In front ni
the train. Ia time 10 ring the bell or blow
j. the Whistle ia order 10 give him warning
}. Of The approach ~ the train and thai they
ana ring Tie bell and blow the ,,,his,i w. N
~ time Tor Roberts TO have heard II and gel
. on the track then those la charge ~ sail
!, train would have had the right 10 presum,
u that he would get on the track. and lf yo,
l- 80 find then the pluintn cannot rerOyor
Il unless YOU believe those In charge OF defen
m daut coIupanys engine and train rang IN,
" hell aud blew the whistle aud saw Inn
"a said Roberts was not going 10 get on M,
|" track before ID reuched him or could b,v,
~ uscertaiacd that he was not going la pr
J" on the track, by the exercise of dine car,
IL aud caution IN time 10 stop the train he
L. fore it reached him, and failed To do so
While We do not think the nbIectIon "a,
urged TO this charge by appellants assigp
nent would require q reversal OF The inds
menr. shll we are OF opinion that II Is ob
icctiOnahlo as not containing "A clear an,
ii correct statement of the law AZ applicant,
y, TO me facts OF this case; nc least NJ,
~ think the jury might easily have misnnd"r
NJ stood what was doubtless Intended 10 i,
"a expressed; Ihc court evidently had In min,
!" the doctine Of discovered negligence. m,
IN ~, as some OF the Language might seem 1,
!" Imply IL was Intended to state thai tbouel
,n | the perilous position OF deceased resDIte,
M rom nus own negligence appellant woul,
=, sun be liable Tor the failure OF Its tral,
!, men 10 discover this peril by keepipg
u ! Paper lookout the charge WAS Incorrect
y. Where person goes upon q rnilroa,
ne