Houston & Texas Central Railway Co. v. Waller

Citations

• 56 Tex. 331
• 1882 Tex. LEXIS 37

Syllabus

<p>1. Disability of juror—Mental distress no excuse.—By mental distress of a juror, occasioned by sickness in his family or of others demanding his presence at home or elsewhere, he is not “ disabled from sitting,” within the meaning of the phrase as used in article V, section 13 of the constitution^ so as to empower the remainder of the jury to render the verdict over the objections of either party.</p> <p>3. Evidence, admissible when — Disregarded — Intoxication.— A man whilst crossing the track of a railroad, at a public crossing, at ° night, was struck by the tender of a switch engine and fatally injured. Suit was brought alleging negligence on the part of the railroad company in various respects, and especially in the absence of sufficient lights. The answer of the company set up intoxication on the part of the man killed, making him unconscious of the danger; and that he recklessly attempted to cross the track in front of an approaching engine. Held,</p> <p>(1) The depositions of witnesses as to the arrangement of lights, etc., on another occasion, but on the same sort of a night, were admissible if that arrangement had not been materially changed since the accident; but if such change had taken place, then those depositions would be irrelevant and inadmissible.</p> <p>(2) Where there was conflicting testimony as to whether a change of the lights, etc., had taken place, the court should not have excluded the deposition, but should have instructed the jury to disregard the evidence if they found that the surroundings had, in fact, undergone a material change.</p> <p>(3) That the sobriety or intoxication of deceased was a proper subject for the consideration of the jury in determining whether he exercised due care or not.</p> <p>3. Contributory negligence — Question for the jury.—The court was asked to instruct the jury that the failure of one about to cross a railroad track to look each way for an approaching engine is negligence. Also if the train was running