Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1895-11-14
THE SUPREME COURT.
opinions Handed Down Mt the Las,
sitting

Ausuh' Texas. November 1.-THE fol-
io"ihg opinion was delivered by the su-
,, premo court today,
| "ik.ArHERFoRD, MINERAL wELI.s
a aS1 NsoIRTAWEsrEhN hAllWAi
suit by the wife and m nor children ~
FRANK Duncan TO recover dainux,v RS
hui'ins from the alleged nsslgen, Kill
nnss,, VI saiu duncan by the railway c. M
trict-Anirmed.
FRANK duncan. Mt the date OF the accl-
ueht winch resulted In his death, was
an employe OF the Texas Coal and Fuel
company, In the capacity Of a coal trim
iher' Ills duties were to trim the stat. on
.ho c0ssl' place the cars on the sea4es. ana.
"heh ioaued, 10 remove them tnet efrom
'.iiu 70 replace them by otnsr curs TO De
.,nv"ise ivaaed. IL was hts auIy 10 CON
- He WINGS or tue coal gnute VIA
.he cur 10 be iuauod. and 10 see tuat suc,l
e"s WAS properly prvteetsd whue there
~ ~ ne tiine OF tho aeriaent a box car
". us s'uHolhB upon the sca.es, wltn tie
Mlhss oi the chute auJuste4 40 nj 90 resi-
miishin lts doors. aiia parlaAy lJa.ed
Tl.h coal. las. OF TINS toS car, ana IN
the same switch track, stood an cnpty
TX car. which had been Ieet mere py
tnv railway company Tor tue pu4 pose o.
nerhs ionned VITO coal, East al in.s pox
hld aiIeauy been lou4,d Win sIl,ie' ,rns
VIlpty cars, when placed on the sue
Track Tor the purpose OF beng .oldod,
Duncan. 500 N""SNi VI
ON the. occasion mentioned. the en-.
p.uyss OF the railroad company, by =
cars upon the switch track upon wnio.i
me y uips were located and on when
were the cars before named. IN putIng
tsese cara upon this track, the einpioyes
OF the railway company were niiiity ~
negligence In send ng them at 100 grenf
q speed and without proper prec. ut on
coming down the rack and mounted Hhs
empty box car for the purpose OF ae tinn
me brakes, N order TO prevent II rim
whereby the chute would have been in.
against The car which DUNCAN ''k sSd
was thrown upon tho track and there
upon was run over aud killed From Dun.
cars position he wuA not able To appre-
gGlaIe or un ierstqnd the force with wiieh
the cars were switched upon the sIdetrnI X
or the speed at which they were com nR
but the, circumstances were such aB 10
apply the brake so ~ to protect the cor
which was being loaded with coal IN
doing SO ho was not guilty of contrlbutory
The above facts are stated as found by
tho court OF civil appeals, which court
anirmed the Judgment OF the trial court.
!. The trial court did not err In eNelnd-
Ing tho owl cnce offered by tho defendnnt
nelOw TO prove the Gus ON Of railroads
IN making flying or drop switches. The
fact OF making that character OF awltches
was not In issue, but the manner In whish
II was made In this Instance constitutal
the negligence relied upon for recovery
Upon such an issue. evidence OF tho Gus,
tom OF other railroads Is not admissible
as evidence 10 disproye negligence. Isl
Texas, 3iS, 81 Texas, o. 70 Texas, egT)
2 There was no error In permitting the
plaintiff to account for the absence OF
witnesses who were present at tho time
n tho accident and who had been sub.
poened by the plaintiff
., Frank Duncan was not n volunteer
servant Of the railway company HIS act
wns done as the servant Of the TOxas
Coal and Fuel comunny. The nndlnrs ~
the courts below show thai tho etnnioyeg
n the defendant were negligent and that
Duncan was guilty OF no oontrlbutory
negligence,
Was Duncan rlrhtfullv on the box car
n the time OF the accident?
We are OF tho oninion that he was
From the facts found, II follows as a
matter n law that Duncan stood In the |
same relation to the railway romrany rs !
any other porson would have done who J
rors rightfuly uron Its track. ~, fr
Instance, one nqsa'ng over such track |
ipon public highway,
There II no error In the judgments of |
he court below.
Opinion by Brown. y. |