Galveston, Harrisburg & San Antonio Railway Company v. H. R. Michalke, 90 Tex. 276

GAINES, Associate Justice. are of the opinion that the application for the writ of error in this case should he refused. In upholding, however, the ruling of the Court of Civil Appeals—that the first charge requested hy the plaintiff and given hy the court was not error—we deem it proper to say that we do not question the right of a railway company, as a general rule, to erect the structures necessary for the prosecution of its business and to leave standing cars upon its side tracks, near a street or road crossing.

But we think that the circumstances of a case may he such that, as a matter of fact, it may be negligence to do so. It has been so held hy this court. (Receivers v. Stewart, 17 S: W. Rep., 33.) There ■was evidence in this case from which in our opinion the jury were authorized to infer negligence. We do not understand the Court of Civil Appeals to differ with us, with reference to this question; but as their opinion does not point out the circumstances in evidence which take dhe case out of the general rule, we think it best to say this much in order to prevent a misconception of our ruling.

Writ of error refused.