Citations
- 55 Tex. Civ. App. 577
Full opinion text
KEY, Associate Justice.
This is a personal injury suit, which resulted in a verdict and judgment in favor of plaintiff for $750, and the defendant has appealed.
We sustain appellant’s second assignment of error, which complains of the action of the court in refusing to give a requested instruction directing the jury to return a verdict for the defendant. We sustain that assignment for the reason, as contended on behalf of appellant, that it was shown by the uncontroverted evidence that the plaintiff was guilty of contributory negligence. The defendant filed a plea of contributory negligence, fully covering the facts developed by the testimony. The testimony relied on by the plaintiff bearing upon the question under consideration is as follows:
The plaintiff testified as a witness in -his own behalf as follows: That on the night of March 19, 1908, he was a passenger on a west.bound car of defendant on Sixth Street in the city of Austin, and that he was going to his boarding house, which was situated at the corner of Sixth Street and Guadalupe Street, being on the south side of Sixth Street and east of Guadalupe Street; that there were two tracks of defendant on said Sixth Street, situated about six feet apart; that before he reached Guadalupe Street he rang the bell twice, and that the car was slowing down when he got off the car; that he got off the car just at the intersection of Guadalupe and Sixth Streets; that when he got off he walked right behind the car that he got off of, which was going west, and just as he walked behind and got a little away from it another car, going east on the other or south track, ran up and hit him; that he did not know of any warning that he had that that car was coming; that he did not see it nor hear it; that “I saw it before it hit me; I was right close up to the other car; I tried to get out of the way. Just as I went behind the car I got off of there was a flash of the other car right there at me coming on the south track. Just as I walked around going to my house ther^was a flash of light, and I threw up my hands like this, and this hand went on the side of the car and that hand must have struck the gate. I did not hear any bell ring; I think I was in a position to have heard it if they had rung the bell. I have good hearing. When I got off this car that was going west at this point it did not stand still; it was moving on, leaving me. I had hold of the handle-bar and just stepped down off of the car. I did not stop at all—I don’t guess I did; I don’t remember exactly, but I remember stepping off of the car just like this, and walking right straight in a bee-line from where I got off. I was looking in the direction that I was going. I had good eyesight; I saw the car when it was just coming up. It was so fast I could hardly tell you how close it was to me when I saw it. It was right there. I saw it maybe five feet away from me, or six feet, but I didn’t have time to get out of the way. I had not quite gotten on the other track. I had not stepped on to the track that this eastbound car was on. I had just gotten behind the other car when I saw that flash of light. I tried to step back and protect myself, but I was not able to do so.”
On cross-examination the plaintiff testified: