Texas & Pacific Railway Co. v. Hill

Citations

• 71 Tex. 451
• 9 S.W. 351
• 1888 Tex. LEXIS 1165

Syllabus

<p>1. Variance.—in the petition it was charged that the personal injury was caused at a public crossing by the negligence of the railway company, etc., in not keeping a safe crossing over its track at the public crossing defects in the bridge, and in the position of a hand car and pile of ties being given as particulars, etc. The testimony showed that the crossing was good and tended to show that the team driven by deceased took fright at the hand ear and pile of ties at the crossing and, ran a distance of one hundred to one hundred and fifty yards before deceased was thrown from the wagon. Held, no variance existed between the petition and testimony.</p> <p>2. GROSS NEGLIGENCE OF SERVANTS-In action for damages from gross negligence of the servants and employes of a railway company, it involves upon the plaintiff. in order to recover, to establish such degree or character of negligence, and it is error in the court to refuse to instruct the jury that unless gross neglect, defining it, be established, the plaintiff can not recover.</p> <p>3. Cases Followed.—Missouri Pacific Railway Company v. Scott, Tyler term, 1886 and Hendrick v. Walton, 69 Texas.</p> <p>4. Negligence not Matter op Law, but it has been held that “where the facts are undisputed, and such that only one conclusion can he drawn from them, then the question is one of law.” Still, unless an act or combination of acts are denounced by statute as negligenee, courts have rarely felt authorized to withdraw from the jury the decision of the entire facts whether they constitute negligence.</p> <p>5. Circumstantial Evidence.—That other horse teams became frightened at the crossing is competent as a circumstance to show the condition as to safety, etc., at and before the injury, it being shown that the team of the deceased was running as if from fright immediately upon passing the crossing.</p>