Texas Midland R. R. v. Wiggins

10 Citing cases

  1. Texas P. Ry. Co. v. Marrujo

    172 S.W. 588 (Tex. Civ. App. 1915)   Cited 4 times

    If there was sufficient evidence to require the trial court to submit this question to the jury, this judgment cannot be disturbed upon appeal. Texas Midland Railway Co. v. Wiggins, 161 S.W. 445. The only direct and positive testimony in the record, that of eyewitnesses, as to how deceased came to his death, is that of the engineer of the train.

  2. Rau v. Northern Pacific Railway Co.

    87 Mont. 521 (Mont. 1930)   Cited 29 times
    In Rau v. Northern Pacific R. Co., 87 Mont. 521, 539, 289 P. 580, 585, this court in affirming the action of the trial court in sustaining a motion for a nonsuit by defendant said: "However, when, as in the action now before us, `the plaintiff's own case presents evidence which, unexplained, makes out prima facie contributory negligence upon his part, there must be further evidence exculpating him or he cannot recover.

    ( Everett v. Hines, 64 Mont. 244, 208 P. 1063; Sprague v. Northern P. Ry. Co., 40 Mont. 481, 107 P. 412; Sherris v. Northern P. Ry. Co., 55 Mont. 189, 175 P. 269.) The following cases consider the questions of no warning given, excessive rate of speed of railroad trains in approaching crossings, and contributory negligence in railroad crossing cases, and the courts have held that the facts in said cases have been questions for the jury and not for the courts on motions of nonsuit, to-wit: Chesapeake O.R. Co. v. Ward's Admr., 145 Ky. 733, 141 S.W. 72; Bradley v. Central R. Co. of New Jersey, 84 N.J.L. 357, 86 A. 378; De Scheppers v. Chicago, R.I. P. Ry. Co., 179 Ill. App. 298; Schwartz v. Northern P. Ry. Co., 77 Wn. 44, 137 P. 317; Merwin v. Northern P. Ry. Co., 68 Wn. 617, 123 P. 1019; Murray v. Pennsylvania Ry. Co., 242 Pa. St. 424, 89 A. 557; Virgin v. Lake Erie W.R. Co., 55 Ind. App. 216, 101 N.E. 500; Seaboard Air-Line Ry. Co. v. Blackshear, 11 Ga. App. 579, 75 S.E. 902; Texas Midland R.R. v. Wiggins, (Tex.) 161 S.W. 445; New York S. W.R. Co. v. Thierer, 209 Fed. 316, 126 C.C.A. 242, 4 N.C.C.A. 718; Eaton v. Southern P. Co., 22 Cal.App. 461, 134 P. 801. The plaintiff failed to make a case for the jury on either one of the grounds charged in his complaint.

  3. Blum v. R. R

    122 S.E. 562 (N.C. 1924)   Cited 14 times
    In Blum v. R. R., 187 N.C. 640 (647-8), it is stated: "There was error against the plaintiff in giving this instruction that the jury should not consider it negligence that the defendants did not maintain automatic gong or other safety device at the crossing in question, and instructing them not to consider the absence of such a gong or other safety device in passing upon the first issue. This was a matter for the jury upon the evidence.

    " In R. R. v. Wiggins (Texas), 161 S.W. 445, it is said: "The settled rule in reference to the issue here raised is that, if a person of ordinary prudence would, under all the circumstances, have maintained a flagman or watchman at the crossing, where the plaintiff was injured, then the failure on the part of the railroad company to keep such flagman or watchman was negligence." In Annaker v. R. R., 81 Iowa 267, it is said: "Whether such omission is negligence depends upon the circumstances, such as the frequency with which trains are passing, the amount of travel, the opportunities, or want of opportunities, for travelers observing the approach of trains, and the like."

  4. Kirksey v. So. Traction Co.

    217 S.W. 139 (Tex. 1919)   Cited 65 times
    In Kirksey v. So. Traction Co., 110 Tex. 190, 217 S.W. 139, an automobile which was driven by Kirksey collided with an interurban car on a public crossing, with nothing to obstruct his view.

    Shurtleff Cummins, and Scott Ross, for plaintiff in error, cited: Cartwright v. Canode, 106 Tex. 502; Railway v. Boone, 105 Tex. 191; Railway v. Gasscamp, 69 Tex. 549. Templeton, Beall Williams, and Wear Frazier, for defendant in error, cited: Marshall E.F. Ry. Co. v. Petty, 180 S.W. 105; Ft. Worth D.C. Ry. Co. v. Hart, 178 S.W. 795; Baker v. Collins, 199 S.W. 518; G.H. S.A. Ry. Co. v. Bracken, 59 Tex. 71 [ 59 Tex. 71]; Schaff v. Combs, 194 S.W. 1159; Texas Pacific Ry. Co. v. Johnson, 125 S.W. 933; Texas Midland Ry. Co. v. Wiggins, 161 S.W. 445; Sanchez v. Railway Co., 88 Tex. 117 [ 88 Tex. 117]; Railway Co. v. Kaufman, 101 S.W. 818. MR. JUSTICE HAWKINS delivered the opinion of the court.

  5. Cartwright v. Canode

    106 Tex. 502 (Tex. 1914)   Cited 241 times
    In Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 697, our Supreme Court made this statement of the Rule: 'When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury.

    This honorable court erred in its judgment and opinion wherein it stated the jury might conclude from the facts that the defendants volunteered to aid in the raid, and that it had legal authority to discard evidence explanatory of the defendants' conduct, which they must have done in this instance, because the verdict of a jury must be based upon facts in evidence and not upon inferences or conclusions. Zapp v. Michaelis, 58 Tex. 270 [ 58 Tex. 270]; Mo. Pac. Ry. Co. v. Somers, 78 Tex. 439 [ 78 Tex. 439]; Willis v. Lewis, 28 Tex. 185; Dimmitt v. Robbins, 74 Tex. 441; Mutual Life Ins. Co. v. Tillman, 84 Tex. 31; Short v. Kelly, 62 S.W. 944; I. G.N. Ry. Co. v. Brice, 111 S.W. 1094; Texas Midland R.R. Co. v. Wiggins, 161 S.W. 445; Keneman v. Hubbard, 160 S.W. 304. Reeder Graham, N.A. Stedman, and F.A. Williams, for defendant in error.

  6. Mccarty v. Gappelberg

    273 S.W.2d 943 (Tex. Civ. App. 1954)   Cited 20 times
    In Gappelberg we held that for the purpose of establishing the primary fact for which it was admitted, that plaintiff was intoxicated at the time of his accidental injury, it was inadmissible and amounted to reversible error under the test of Texas Rules of Civil Procedure 434.

    Evidence bearing upon the plaintiff's antecedent intemperate habits is generally inadmissible in the absence of additional proof, by way of connecting facts or circumstances, that such habits have a relevancy bearing upon such a person's physical condition at the time of his accident. 61 C.J.S., Motor Vehicles, § 516, sub. (2), Intoxication, page 250; 17 Tex.Jur., 'Evidence', p. 412, sec. 147, 'Intoxication'; Texas Midland R. Co. v. Wiggins, Tex.Civ.App.Dallas 1913, 161 S.W. 445, error refused; Tripp v. Watson, Tex.Civ.App.Fort Worth 1950, 235 S.W.2d 677, writ refused, n. r. e.; Texas N. O. R. Co. v. Diaz, Tex.Civ.App.Beaumont 1921, 234 S.W. 919, error dismissed; Galveston, H. S. A. Ry. Co. v. Davis, 1898, 92 Tex. 372, 48 S.W. 570; Mason v. Missouri, K. T. Ry. Co. of Texas, Tex.Civ.App.Dallas 1912, 151 S.W. 350; Browne v. Bachman, 1903, 31 Tex. Civ. App. 430 [ 31 Tex. Civ. App. 430], 72 S.W. 622; Traders General Ins. Co. v. Boysen, Tex.Civ.App.Beaumont 1939, 123 S.W.2d 1016, error dismissed, judgment correct. We believe that the law is well settled that such character of evidence may be received where an issue of fact is made as to whether such a plaintiff was intoxicated at the time of his accident.

  7. Gross v. Blecker

    105 S.W.2d 282 (Tex. Civ. App. 1937)

    The propriety of the argument, as answering opposing counsel's argument, rests in the sound discretion of the trial court. Texas Midland R. R. v. Wiggins (Tex. Civ. App.) 161 S.W. 445; Glover v. Pfeuffer (Tex. Civ. App.) 163 S.W. 984; Nimitz v. Holland (Tex. Civ. App.) 217 S.W. 244; Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298, 239 S.W. 185; Heard v. Heard (Tex. Civ. App.) 272 S.W. 501; Fidelity, etc., Ins. Co. v. Mumaw (Tex. Civ. App.) 287 S.W. 120. Again it appears that appellants' counsel had argued that the jury should believe the plaintiff's testimony, wherein he had testified that he had passed by the property, and had not noticed the fence had been moved, and inferred therefrom that the fence had not been moved; in response to which argument opposing counsel had stated that by asking the jury to believe plaintiff's testimony, appellants' counsel had hanged himself, when he had intended to hang appellees, and likened such action to the incident of Haman causing the gallows to be built for the purpose of having Mordecai hanged, but got hanged thereon himself.

  8. Waco Mut. Life & Accident Ass'n v. Alford

    289 S.W. 93 (Tex. Civ. App. 1927)   Cited 6 times

    Whether or not the argument exceeded the bounds of propriety to the prejudice and injury of appellants was a question addressed to the sound discretion of the trial judge, and as he has overruled appellants' contention on this point, we cannot say — in fact, we do not believe — that he abused his discretion in this respect. Texas Midland R. R. Co. v. Wiggins (Tex.Civ.App.) 161 S.W. 445; Glover v. Pfeuffer (Tex.Civ.App.) 163 S.W. 984; Nimitz v. Holland (Tex.Civ.App.) 217 S.W. 244; Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298, 239 S.W. 185; Bowles v. Bryan et al. (Tex.Civ.App.) 277 S.W. 760. We overrule this assignment.

  9. Texas N. O. R. v. Harrington

    209 S.W. 685 (Tex. Civ. App. 1919)   Cited 18 times
    In T. N. O. Ry. Co. v. Harrington, 209 S.W. 685, decided by the Court of Civil Appeals of the Ninth District, and in S. A. A. P. Ry Co. v. Singletary, 251 S.W. 325, decided by the Court of Civil Appeals of the Fourth District, it was held that the word "crossing" used in that statute extends beyond the limits of the highways where it intersects the railway track, and includes such a portion of the track on each side of the intersection as is reasonably necessary to enable one about to cross the track to observe approaching trains.

    G., H. S. A. v. Bracken, 59 Tex. 74; G., H. S. A. v. Kutac, 72 Tex. 643, 11 S.W. 127; Railway Co. v. Edwards, 100 Tex. 22, 93 S.W. 106; T. P. v. Fuller, 5 Tex. Civ. App. 660, 24 S.W. 1090; Ft. W. D.C. v. Hart, 178 S.W. 795; Southern Traction Co. v. Kirksey, 181 S.W. 545; M., K. T. v. Trochta, 181 S.W. 764; St. L.. B. M. Ry. Co. v. Paine, 188 S.W. 1034; Baker v. Collins, 199 S.W. 520; Ry. Co. v. Jacobson, 28 Tex. Civ. App. 150, 66 S.W. 1111; Railway Co. v. Dean, 76 Tex. 73, 13 S.W. 45; St. L. S.W. Ry. Co. v. Branom, 73 S.W. 1064; Texas Midland v. Wiggins, 161 S.W. 445; Teetz v. I. G. N., 162 S.W. 1000; Lyon v. Phillips, 196 S.W. 995; Railway Co. v. Harrell, 194 S.W. 971; Railway Co. v. Breadow, 90 Tex. 26, 36 S.W. 410; Railway Co. v. Shieder, 88 Tex. 152, 30 S.W. 902, 28 L.R.A. 538; Southern Trac. Co. v. Wilson, 187 S.W. 538. In I. G. N. Ry. Co. v. Edwards, 100 Tex. 22, 93 S.W. 106, Judge Williams said:

  10. Texas Midland R. R. v. Nelson

    161 S.W. 1088 (Tex. Civ. App. 1914)   Cited 1 times

    RASBURY, J. The appellee sued appellant in the court below for $200, alleged to be the value of a horse, wagon, and harness destroyed by appellant in a collision in the town of Terrell at the intersection of appellant's road and Moore avenue, a public highway, between appellant's train and appellee's wagon while being driven by John Wiggins. The grounds of negligence alleged by appellee, the defenses urged by appellant, and the evidence adduced upon trial of the case are substantially identical with those set out in our opinion delivered November 29, 1913, in the case of Texas Midland Railroad v. John Wiggins, 161 S.W. 445, not yet officially reported, which are adopted as a part of this opinion, except where departed from. Wiggins was appellee's driver, and the opinion referred to disposes of an appeal taken by appellant in this case from a judgment for Wiggins for damages for injuries sustained by Wiggins in said collision, which at the same time destroyed the property herein sued for. Upon trial of this case appellee recovered verdict for $150. The issues raised on this appeal by appellant under authority of its first, second, third, fourth, fifth, seventh, and eighth assignments of error are decided adversely to appellant in the Wiggins Case, and for that reason we will not discuss them here.