Manson v. Eddy & Cross

STEPHENS, Associate Justice.

This is an agreed case under article 1414 of the Revised Statutes, brought here for the single purpose of obtaining a revision of the court’s charge. The statement of facts is brief, and does not present any conflict in the evidence.

In short, the case is this: Appellant was a locomotive engineer in the employ of appellees, engaged in running a freight train between Denison, Texas, and Muskogee, in the Indian Territory. His engine was derailed about 11 o’clock at night, in the Indian Territory, by coming in contact with a cow fastened in a railroad bridge, with her legs down between the ties. Less than three hours before that time, the track over the bridge was clear of obstructions. Our conclusion from the undisputed facts is, (1) that the evidence failed to show that the appellees were guilty of negligence in the discharge of their duty to appellant as one of their employes; and (2) that the injury which appellant received was the result of an accident which he must be held to have contemplated as within the assumed risks of becoming an engineer for appellees. In other words, we are of opinion that the jury could not properly have found a verdict for appellant, and that therefore, if there was error in the charge, as as *150 signed, it would not require a reversal of the judgment. Ward v. Bonner and Eddy, 80 Texas, 168 .

The judgment will be in all things affirmed.

Affirmed.

Delivered April 12, 1893.

Justice Head did not sit in this case.