Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Galveston term, 1884, and embracing the greater part of the Austin term, 1884. Volume 61. Page: 5
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1884.] G., C. & SANTA FE R'Y Co. v. EVANSICH. 5
Opinion of the court.
that the following instruction took the question of negligence from
the jury.
The instruction objected to is as follows: "The fact that it was
not the custom upon other roads in Texas, and in other states, and
upon defendant's road, to fasten, lock, guard or watch turn-tables,
will not affect plaintiff's right to recover in this suit if it is shown
by the evidence that he has received damages as alleged. It is the
legal duty of defendant to keep its turn-table locked, fastened or
guarded, to keep children without discretion from being injured
thereon, without regard to the custom of railroads as to not fastening
or guarding turn-tables."
It is certainly true that the habitual practice of negligent acts by
any number of railways, for any period of time, cannot make a
negligent act,an act of due care and diligence. The charge in question
does not inform the jury that a failure to perform a given act
is negligence, but it does inform the jury, in effect, that the habitual
practice of the appellant, and of other railways, not to lock,
fasten, guard or watch turn-tables would not affect the right of the
appellee to recover, "if it is shown by the evidence that he has
received damages as alleged."
The petition alleged that the injury was received through the
negligent act of the appellant, and whether this was true or not
was left to the jury to be determined by the evidence.
The last part of the charge, though it refers to given methods of
securing the turn-table, could not have been understood by the jury
otherwise than as instructing them that it was the duty of the railway
company so to keep its turn-table that children not having sufficient
discretion to know and avoid danger attending the use of it
could not use it.
This is certainly the duty of a railway company, and it was not
improper for the court so to inform the jury, the other conditions
upon which the liability of the appellant depended having been
given in the charge.
The record makes it reasonably manifest that the custom of other
railways not to secure their turn-tables was urged as a sufficient
reason for a neglect in this respect by the appellant, and as a measure
of the care and diligence required of it; and the charge in question
was evidently given to correct any erroneous impression in
this respect which may have been made upon the mind of the jury
during the trial.
The second instruction asked by the appellant was: "If you
believe, from the evidence, that the turn-table of defendant was
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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 Galveston term, 1884, and embracing the greater part of the Austin term, 1884. Volume 61., book, 1903; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28513/m1/21/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .