Texas & P. R'y Co. v. McAtee

61 Tex. 695, 1884 Tex. LEXIS 176

• Court: Texas Supreme Court
• Decided: June 3, 1884
• Docket: Case No. 5071
• Status: Published

Opinion

West, Associate Justice.—

The court in its main charge presented fairly enough, to the consideration of the jury, the principal issues in the case. The court, also, in connection with its own charge, gave the following instructions at the instance of the appellant:

“ 1st. It devolves upon the plaintiff in this case to prove that the brake on this car was so defective, that, by proper use of it, the work for which it was intended could not be performed.

“ 2d. That the injury to plaintiff was caused by the defects in the brake.

“ 3d. That he did not know of the defect in the brake, and by proper care could not have known it.

“4th. That the defendant or its officers knew, or in the exercise of proper diligence ought to have known of it. If the evidence does not satisfy you of the truth of these propositions, you will find for the defendant.

“ 5th. The evidence must satisfy you that the injury received resulted from the defect in the brake, and if you cannot, from the evidence, determine that the said defect did cause the injury, you will find for the defendant.

“ 6th. If you believe from the evidence that, after plaintiff discovered the defective condition of the brake, he safely disconnected himself from the car, and afterwards voluntarily went into a position of danger, and was thereby injured, he cannot recover unless you believe a man of ordinary prudence would so have acted under like circumstances.”

Under the main charge of the court and the above instructions (and others given), the jury proceeded to examine the evidence adduced on the trial. They, by their verdict, found that the injuries received by the appellee resulted directly from the defects in the brake as the proximate cause thereof.

They also found that the appellant was guilty of culpable negligence in failing to discover, as it should have done, the defect in the brake, and in not repairing it at once.

The verdict seems to be large, but the evidence shows that the injuries to the appellee were serious and permanent, and no complaint is made by appellant of the verdict on the ground that it is excessive.

After a careful examination of the case, there appears to be no material error in the record. The judgment of the district court is therefore affirmed.

Affirmed.

[Opinion delivered June 3, 1884.]