Davenport v. Waters

Error is assigned upon the following charge: “If it affirmatively appears, from the evidence, that the plaintiff, Davenport, did not use ordinary care and diligence to discover the approach of defendant’s train upon its track before he attempted to cross said track at the crossing, then he can not recover for any alleged negligence of the defendant or the defendant’s employees.” Almost immediately preceding this charge the court charged as follows: “If you find, from the evidence, that the defendant’s employees were negligent in any of the particulars alleged in the petition, and that such…