Ft. Worth Denver City Ry. Co. v. Longino , 103 Tex. 250 ( 1910 )

Defendant in error, S.B. Longino, was run over and injured by a train of the appellant company and sued and recovered damages therefor.

The accident occurred on the track of the Ft. Worth Denver City Railway Company north of Ft. Worth. The track of the railroad was much traveled by pedestrians and in such manner that the officers of the company might be deemed to have acquiesced in such use. Clearly persons using it could not be deemed trespassers. Trains coming from the north, could be seen for a mile or more. The defendant in error with a companion by the name of Hoard started out to take the track and passed through a wire fence of the right of way and started down the track at a trot. When Hoard and defendant in error reached the railroad, Hoard testifies that he saw no train on the Ft. Worth Denver City Railroad. When they had gone about one hundred and fifty yards, as he testifies, a man going in the opposite direction called the attention of the witness to the train that was following them, when he jumped from the track barely in time to escape being run over. Longino was at seven to ten feet in front of him. He called to Longino to get off the track; and Longino attempted to do so but was struck by the train and carried some fifty yards when he was flung aside and left near the track. Longino testified in the case but recollected nothing that happened after they reached the track. Now it is to be observed that Hoard testified that upon approaching the track he looked and saw no train upon the Ft. Worth Denver City Railroad. Longino may have looked at the same time that Hoard did and have discovered that no train was in sight upon this road. Now if the train was running at the rate of thirty miles an hour, which is a low rate for a passenger train, it would require two minutes or 120 seconds to make the mile. It would require a little less than ten seconds to go 150 yards. How many times would a man of ordinary prudence be expected to look in this short space of time? It is peculiarly a question of fact. The case is not unlike that of Dublin W. W. Ry. Co. v. Slattery, L.R. 3 App. Cases, 1155, in which it was held in the House of Lords that a verdict that the deceased was not guilty of contributory negligence could not be set aside.

We have carefully considered the other assignments of error in the application for the writ of error but we are of opinion that they point out no error.

The judgment is accordingly affirmed.

Affirmed.