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: 6
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6 GG., C. & SANTA FE R'Y Co. v. EVANSICH. [Galv. Term,
Opinion of the court.
built in a proper manner, upon its own property, and that it is and
has been customary upon railways generally to leave turn-tables
unlocked and unguarded, and that such custom and practice is
reasonable, and such as an ordinarily prudent person might be expected
to exercise, then you will find for the defendant."
This instruction was misleading and otherwise objectionable. The
question was: Did the injury result from the negligence of the
appellant? This was the inquiry to be made by the jury, under
the evidence before them bearing upon that fact.
The charge asked was calculated to induce the jury to believe
that the proper construction of the turn-table, upon the land of the
appellant, was a distinct and important inquiry in the case. This
was not true; for however well the turn-table may have been constructed
upon the land of the appellant, yet it was liable if it kept
the turn-table negligently and injury resulted therefrom without
neglect by appellee or his son.
It was also calculated to induce the jury to believe, if other railways
usually kept their turn tables unlocked and unguarded, and
that with such railways such was a reasonable and prudent manner
of keeping them, that it followed, as a matter of course, that the
failure of the appellant to secure its turn-table would not be negligence.There are two vices in the charge in this respect. Negligence is
a fact to be determined in a case by the evidence, and that other
railways may not usually have kept locked or guarded their turntables,
and that such habitual practice may have been, as to them,
reasonable, and the exercise of due care, would not tend to prove
that such failure on the part of appellant was the exercise of due
care.
The facts under which a turn-table was so left unsecured would
have to be looked to in each case to determine whether due care
was used or not. In one case due care may not require that a turntable,
from its situation, or other reason, be fastened at all, while in
another the failure to fasten it would be negligence.
While it is true that an established custom may be looked to, in
many cases, for the purpose of determining what parties really intended
by a given contract, and what acts in the performance of it
will satisfy it, it may well be questioned whether in any case in
which, in the absence of contract express or implied, negligence as
an element, is the foundation of a right, custom may be set up for
the purpose of showing that negligenee does or does not exist.
In such cases it would seem that the question whether negligence
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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/m1/22/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .