Collins v. Dillingham, Receiver

Court of Appeals of Texas

Collins v. Dillingham, Receiver

26 S.W. 87, 7 Tex. Civ. App. 93, 1894 Tex. App. LEXIS 264

CourtCourt of Appeals of Texas

DecidedApril 18, 1894

DocketNo. 762.

StatusPublished

Cited by1 cases

This text of 26 S.W. 87 (Collins v. Dillingham, Receiver) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Collins v. Dillingham, Receiver, 26 S.W. 87, 7 Tex. Civ. App. 93, 1894 Tex. App. LEXIS 264 (Tex. Ct. App. 1894).

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Opinion

COLLARD, Associate Justice.

The judgment of the court below will have to be reversed because of error in the court’s charge, in this: The court instructed the jury, by request of defendant, that if they should “believe from the evidence that the plaintiff, R. C. Collins, was walking upon the railroad track, and that he neither looked nor listened for an approaching train, and by looking and listening he could have seen the train before it struck him, then he was guilty of contributory negligence, and can not recover.” The charge was qualified as follows: “That if by looking and listening plaintiff could have discovered the approaching train in time to get off the track and avoid injury, then he was guilty of contributory negligence, and can not recover.”

The error in the charge is in telling the jury that the facts stated would be contributory negligence, and in inferentially telling them that it was duty to look and listen. The question of negligence or not on the part of plaintiff should have been left to the jury. Railway v. Porfert, 72 Texas, 344; Railway v. Dyer, 76 Texas, 161; Railway v. Anderson, 76 Texas, 244.

It is enough to inform the jury that a plaintiff in such actions is required to use ordinary care, that is, such as a person of ordinary pru *96 dence would exercise under similar circumstances, and a failure to do so would be negligence on his part which would preclude a recovery by him if it proximately contributed to the injury complained of.

Delivered April 18, 1894.

There was no error in refusing the following charge, requested by plaintiff:

“If the jury believe from the testimony that defendant’s train was not provided with proper lights, and that if said train had had proper lights the employes of said train could have discovered plaintiff on the track in time to have stopped the train before colliding with him, then you will find in favor of plaintiff, unless you should also find him guilty of contributory negligence.”

This charge is subject to the same objections, in part, as that given by the court at the request of defendant. It undertakes to tell the jury that certain acts and omissions of defendant would constitute negligence. Such a charge would be an improper interference with the province of the jury. There was no error in refusing to so charge.

The judgment of the court below is reversed and the cause remanded.

Beversed and remanded.

Key, Associate Justice, did not sit in this case.

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COLLARD, Associate Justice.

The judgment of the court below will have to be reversed because of error in the court’s charge, in this: The court instructed the jury, by request of defendant, that if they should “believe from the evidence that the plaintiff, R. C. Collins, was walking upon the railroad track, and that he neither looked nor listened for an approaching train, and by looking and listening he could have seen the train before it struck him, then he was guilty of contributory negligence, and can not recover.” The charge was qualified as follows: “That if by looking and listening plaintiff could have discovered the approaching train in time to get off the track and avoid injury, then he was guilty of contributory negligence, and can not recover.”

The error in the charge is in telling the jury that the facts stated would be contributory negligence, and in inferentially telling them that it was duty to look and listen. The question of negligence or not on the part of plaintiff should have been left to the jury. Railway v. Porfert, 72 Texas, 344; Railway v. Dyer, 76 Texas, 161; Railway v. Anderson, 76 Texas, 244.

It is enough to inform the jury that a plaintiff in such actions is required to use ordinary care, that is, such as a person of ordinary pru *96 dence would exercise under similar circumstances, and a failure to do so would be negligence on his part which would preclude a recovery by him if it proximately contributed to the injury complained of.

Delivered April 18, 1894.

There was no error in refusing the following charge, requested by plaintiff:

“If the jury believe from the testimony that defendant’s train was not provided with proper lights, and that if said train had had proper lights the employes of said train could have discovered plaintiff on the track in time to have stopped the train before colliding with him, then you will find in favor of plaintiff, unless you should also find him guilty of contributory negligence.”

This charge is subject to the same objections, in part, as that given by the court at the request of defendant. It undertakes to tell the jury that certain acts and omissions of defendant would constitute negligence. Such a charge would be an improper interference with the province of the jury. There was no error in refusing to so charge.

The judgment of the court below is reversed and the cause remanded.

Beversed and remanded.

Key, Associate Justice, did not sit in this case.

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26 S.W. 87, 7 Tex. Civ. App. 93, 1894 Tex. App. LEXIS 264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-dillingham-receiver-texapp-1894.

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