Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1894-11-16
HIGHER COURTS.


plaintiff, who was being carried as y
pa ,songer on freight train. Thoro
was a derailment OF the train, the
train consisted Of freight cars !"
which a eaboose was attached, ana ne
took his position upon car which was
loaded In part with piles, II was AZ
legged that the accident was caused BY
the running OF the train at danger
ous rate OF speed By the dangerous
manner IN which piles were loaded
upon the car and by negllgently rum
ming over a bull which was found upon
the track The company denied ita heg-
ligsnce and loaded clntrlbutory negl-
gence by riding ON the cars lnsteal OF
in the cnboose. The court eharged
mat the Jury should lind for plaintiff "
they believed that the accident was
caused by the running OF the train az
a dangerous rate OF speed, or by the
negligent loading OF the piles. or by the
failure 20 keep careful lookout Tor
obstruotlona or by two or more OF these
causes combined, unless they should
IND as hereafter lnstructedi and pro-
ceedod to instruct IN effect, that "
they believed from the prcponderance
Of evidence that the train was not run
at dangerous rate OF speed, and that
tho piles were not negllgcntly loaded
ana that a proper lookout was Kept
they should lind FOR defendant This
charge was erroneous because 1t
shifted the burden of prof aud placed
] n upon the company. Although the
derallment may have been sufficient to
raise the presumption OF negligence,
| yet II ala not deVOlyc upon the coin
! pany the duty OF showing by evidence
/ Of prcponleating weight that the
accident was not the result OF neBli-
gence, II was entitled TO verdict II
/ the evidence upon the issue was bal.
! anccd, G7 Tex. liSJ II does not fol-
/ law- however, that the judgment
/ should be reversed where an accl-
{ dent occurs upon "a railway from which
/ - passenger austnins an injury by the
/ breaking down OF "a carriage, or by the
running OF OF the train. or by the
/ spreading or breaking " the rails, the
! very MIXTURE OF the occurrence will be
! prltna fncic negligence In the company
or Ito servants" dlutchcson ON car
ricrH, see. 5000 The rule n very gcner-
MY recognized II 10 recognized In
Hallway company vs., Smith, "A Tex
2's, although the decision In that case
can not be deemed an authoritative
ruling upon that point II ~ ren-
sonable and a sound doctrine that
whore q passenger "a injured BY an nc
cldeut such as tho dernumont of N
train AZ place whore the track and
train are entirely under The cnntroI az
the company. tint ia :, sov y,b,r,
thev nrc no, ln,erfcro5 VII, ,.,' a,,,.
cxiuneous force. a presumnti,n 81
ncgligcnec arises. and tbn, IN nrder ro o
the company 10 exonerote itaolf Tr,r,
liability A m,iat nddrrs a,i,tn,c, ~,
shn,y ,t,ot u',"se 'uunVu 20
been avoided by tho excreise az tbc
utmost enre nnJ forcsi,.tt i..,..,,,,ot'i,
oornpatihie Win ,,,I,i., ty''e0nep, y
t,isinSsa H." plo'.vuuoh OF lls
gought 10 exruac m. occidor, S Sv'" sbo,,
inc NM IL v,as ,,,,,,''1 ,',. ~ '''oN-
thn trncr ,,S, pg q pul upon
Wv untN' Wnleh was not discovered
~ ".' =" vn"rBo OF mo train u
,nu'h"eeu eNdence To show that tho
hull had been struck by train which
hhI passed some hours before and
had been left Ia a crippled condition
80 close TO the Side Of tho track that he
waA struck by the steps Of the engine
and struggled under tho car and
caused the derailment. II this be truo
We are clearly of The opinion maj ira
accident was the result OF the nopli-
gonce Of the compnny'H servnnta In
charge OF the train that flrst struep
tho bun and left II in n crinntsI or,,.
dillon llpon thc slde az ~. t'ap i,, us yon-
the wreck nre,,rrcI 10 ,,, 49, W. n ne'l
on ,,,,.,t,,,d 49,. ~ '.ih"tr anu Two
10, n,i,n' ~" ,Nr track ana ran