International & Great Northern Railway Co. v. Gray

Citations

• 65 Tex. 32
• 1885 Tex. LEXIS 306

Syllabus

<p>1. Railroads—Negligence—Speed—Signals—Contributory Negligence—Plaintiffs were on a hand-car, by permission of the railway company, and the car was making a trip by order of the company. The train which caused the injury was behind time; had just passed a road crossing without sounding the whistle, and was approaching, at the rate of twenty miles an hour, a bridge, where the rules required it to moderate its speed to four miles an hour; it ran into a deep cut, where the track made a sharp curve, and collided with the hand-car, at a point where it had never before run at a rate of over eight miles an hour. Held:</p> <p>(1) That the hand-car was rightfully on the track, plaintiffs were lawfully on board of it, and the- employes on the train were chargeable with notice that it was likely to be there.</p> <p>(2) The failure to give the signals at the crossing, and the excessive rate of speed at the time and place of the accident were acts of negligence on the part of the road.</p> <p>(3) In the absence of evidence showing that it was the imperative duty of persons in charge of a hand-car of this character, under these circumstances, to send out flagmen, it was for the jury to judge of the meaning and effect of the general regulation requiring hand-cars to send out flagmen, taken in connection with the manner in which it was enforced, as shown by the testimony of witnesses competent to speak upon the subject.</p> <p>(4) A regulation requiring hand-cars to send out flagmen, when they were in a dangerous position, would not make a failure to send out the flagmen negligence, if the danger was caused by the failure of the approaching train to slacken its speed ' and give the signals.</p> <p>(5) Whilst the statutory signals to be given at road crossings are intended as a warning to those crossing the track, and the failure to give them, as to such persons, is negligence per se, the failure maybe considered in proving negligence on the part of the company as to other parties