St. Louis & San Francisco Railroad v. Ruff ( 1909 )

Whitfield, O. J.,

delivered the opinion of the court.

On the testimony in this record we think it is clear that a peremptory instruction should have been given for the defendant railroad company. The result of the testimony makes it plain that the unfortunate plaintiff did not look out for the train, but that be simply looked up when be saw the light from the headlight on the track. He was walking on the end of the cross-ties and had nothing on earth to do except step off and be safe. Two men had, just above where he was injured, stepped off in safety. The track was straight for eight miles. The train had whistled for Plantersville; and two or three times afterwards. The case is plainly one of contributory negligence, producing the injury as its proximate cause. It is just one of those rare cases of negligence which a court ought to take from the jury.

Reversed and remanded.