Smith v. Galveston-Houston Electric Ry. Co.

Over the protest of plaintiff in error, the trial court reduced the issues for the jury to a single one involving only discovered peril, and this court, by the affirmance, approves that action. I dissent, believing that, under the pleadings and evidence, the question raised as to the railway company’s primal negligence in the manner of operating the car was not so swallowed up in or superseded by the new duties imposed under the doctrine of discovered peril as to have become eliminated from the cause. Indeed, the evidence tended strongly to show that the very high speed of the car, which the…