Texas & Pacific Railway Co. v. Harvey

Citations

• 228 U.S. 319
• 33 S. Ct. 518
• 57 L. Ed. 852
• 1913 U.S. LEXIS 2374

Syllabus

<p>In Texas, the common-law rule as to risks assumed by the employé has . been qualified by statute so that the employé is relieved from giving notice of defects where a person of ordinary intelligence would have continued in service with knowledge of such defect.</p> <p>Ordinarily, and unless so evident that fair-minded men could not differ in regard thereto, negligence'or--contributory negligence is not a question of law but of fact to be settled by the finding of the jury. Richmond & Danville R. R. Co. v. Powers, 149 U. S. 43.</p> <p>In this case the court having charged that there could be no recovery -if there was contributory negligence on the part of the deceased and also having specially charged that there could be no recovery if the deceased was notacting with the care of an ordinarily prudent man, ■ there was no' error. '-</p> <p>The appellate court is not a jury and has no power to grant a new trial. ' That matter rests in the sound discretion of the trial court, and in a case of this kind its decision cannot be disturbed unless it appears . that contributory negligence was so evident that it became a question of law requiring the court to take the case from the jury.</p>