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Texas N. O. R. v. Levison

Court of Civil Appeals of Texas, San Antonio
Mar 16, 1938
114 S.W.2d 402 (Tex. Civ. App. 1938)

Opinion

No. 10247.

February 16, 1938. Rehearing Denied March 16, 1938.

Appeal from Wilson County Court; V. M. Butler, Judge

Action by Charles Levison against the Texas New Orleans Railroad Company for injuries received by plaintiff when shot by trainman employed by defendant while ejecting plaintiff from freight car. Judgment for plaintiff, and defendant appeals.

Affirmed.

Baker, Botts, Andrews Wharton, of Houston, DeWitt Murray, of Floresville, and B. W. Teagarden, of San Antonio, for appellant.

Lewis Russell, of San Antonio, for appellee.


Charles Levison brought this action against Texas New Orleans Railroad Company for damages for personal injury resulting to him when one of the railroad company's trainmen shot him while ejecting him, as an admitted trespasser, from one of the company's freight cars. From a judgment awarding damages to Levison, the railroad company has appealed.

Resolving the disputed evidence in favor of appellee, as we must do, the facts are, briefly, that appellee, a twenty-one year old boy, was a trespasser "stealing a ride" on appellant's freight train. One of the trainmen ordered him off the car on which he was riding. While obeying the order, appellee was climbing down from, or leaving, the car when the trainman shot twice towards him, intending, the trainman testified, not to hit him, but only to frighten him. One of the bullets, however, struck appellee in the rear of the calf of one of his legs. The injury here complained of resulted. The trainman testified to facts which, if established to the satisfaction of the jury, rendered appellee's conduct most aggravating, and warranted the trainman's intention to frighten him by all reasonable means necessary to put a stop to his harassing conduct. These matters of fact, however, were for the jury, and not this court, to resolve, and we overrule appellant's first, fourteenth, and fifteenth propositions, questioning the sufficiency of the evidence to support a jury finding that appellant's trainman resorted to more force than was necessary in ejecting appellee from the train, and to support the amount of the judgment.

Because they present objections to the charge not made below, or assigned as error, we pass over appellant's propositions of law relating thereto, and look to the assignments of error for such objections as were actually assigned. We have carefully considered these assignments and conclude they present no reversible error.

The judgment is affirmed.

MURRAY, J., did not participate in the decision of this case.


Summaries of

Texas N. O. R. v. Levison

Court of Civil Appeals of Texas, San Antonio
Mar 16, 1938
114 S.W.2d 402 (Tex. Civ. App. 1938)
Case details for

Texas N. O. R. v. Levison

Case Details

Full title:TEXAS N. O. R. CO. v. LEVISON

Court:Court of Civil Appeals of Texas, San Antonio

Date published: Mar 16, 1938

Citations

114 S.W.2d 402 (Tex. Civ. App. 1938)