Negligence — Railway — Injury to Person on Track — Contributory Negligence.
Where a circus train was standing on a side track of the defendant railway company, and an employe of the circus, after the performance at night and after he had performed some duty at the circus train, took his seat on a cross-tie of the main track with his back thereto and placed his hand on the rail, when an engine of the railway company ran over and injured it, and the evidence showed that those operating the engine did not see him, the doctrine of discovered peril did not apply; and there being nothing in the evidence to relieve him from the consequences of his own negligence the company was not liable, though its servants were negligent in operating the engine without light or signal.
RAINEY, CHIEF JUSTICE. —
This suit was brought by the guardian to recover for personal injuries to his ward, John H. Wilson, a minor, inflicted by an engine running over his hand, said engine being operated by appellee's employes. The appellee plead the general issue and contributory negligence. The court instructed a verdict for appellee, upon the return of which judgment was rendered accordingly, and the guardian appeals.
The evidence shows that Wilson, aged sixteen years, was traveling with a circus being hauled over appellee's road. When the circus train reached the town of Stamford, where it was to give a performance, it was placed on a side track which was parallel to the main track, about twelve feet distant. The circus used its own cars. After the night performance was over — about 11 p. m. — Wilson went to the cars to take some ponies, and after placing them on the cars he took a seat on a cross-tie of the main track with his back turned thereto and placed his hand on the rail of said main track and was talking to other parties. While in that position a switch engine on the main track ran over his hand and injured it. The bell of the engine was not ringing, no whistle was blown, nor was the headlight lit. It was dark and Wilson's position was not seen by the employes on the engine.
Complaint is made of the action of the court in charging a verdict for appellee. We think this was not error in the court. The evidence showing that the employes operating the engine did not discover Wilson on the track, the doctrine of discovered peril did not apply, and though they were guilty of negligence in the operation of the engine, the plaintiff can not recover as the evidence conclusively shows that Wilson was guilty of contributory negligence. There is nothing in the evidence to relieve Wilson from the consequences of his own negligence. (Sabine E.T. Ry. v. Dean, 76 Tex. 74; Houston T. C. Ry. v. Kauffman, 46 Texas Civ. App. 72[ 46 Tex. Civ. App. 72]; Bennett v. St. Louis S.W. Ry., 36 Texas Civ. App. 459[ 36 Tex. Civ. App. 459]; Texas Pac. Ry. v. Breadow, 90 Tex. 26; San Antonio A. P. Ry. v. McMillan, 100 Tex. 562.) The judgment is affirmed.
Affirmed.
Writ of error refused.