Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 253
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1884.] i. & G. N. R'Y Co. v. SMITH. 253
Opinion of the court.
2. SAME.-The original negligence of one injured by a moving train does not
excuse the company from care and watchfulness on their part, when they
know that his dangerous position is due to an infirmity like deafness, idiocy,
incapacity to move, or want of appreciation of the impending danger, as in
the case of an infant of tender years.
3. DAMAGES - CHARGE OF COURT.- When exemplary damages are not claimed,
it is not error for the court to fail to give a charge distinguishing between
actual and exemplary damages.
APPEAL from Smith. Tried below before the Hon. Felix J.
McCord.
Suit by the surviving wife of Thomas Smith, against the appellant,
for damages resulting from the alleged negligence of the company
and its employees. The facts as stated in the petition will be
found in the opinion. The verdict and judgment were for the
appellee for $8,000.
T. . lEerndon, for appellant, cited: G., I-. & S. A. R'y Co. v.
Bracken, 59 Tex., 74; I- & T. C. R'y Co. v. Booyer, Tex. L. Rep.,
vol. 3, p. 11; I. & G. N. R. R. Co. v. Graves, 59 Tex., 330; Zimmerman
v. I. R. Co., 2 Am. & Eng. R. R. Cases, 191, 212; Louisville,
etc., R. R. Co. v. Cooper, 6 Am. & Eng. R. R. Cases, p. 6; R. R.
Co. v. Pure, 6 Am. & Eng. R. R. Cases, p. 27.
Robertson & PFinly and T. 0. Woldert, for appellee.
WILLIE, CHIEF JUSTICE.- The statement of facts has been stricken
from the transcript in this cause upon motion of the appellee. We
can therefore consider only such assignments of error as do not depend
for their support upon the evidence introduced upon the trial
below.
The first assignment calls in question some of the allegations of
the petition as being insufficient in law to entitle the plaintiff to a
recovery. The proposition under this assignment is to the effect
that these allegations show that contributory negligence on the part
of the deceased was the proximate cause of his death.
To determine this we must take all the allegations of the petition
as to the cause and manner of the death in connection, and construe
them together. It is alleged that Smith, the deceased, was deaf, and
,that at the time of the accident he was walking upon the railroad
-track of the defendant company, which had been laid upon and
along a public street in the city of Tyler. This street is stated to
have been between the residence and the place of business of the
deceased, and that it was necessary for him to cross and make use
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/275/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .