Sorry, I don't have any information on him. I was just playing around one day in Hotbot to see what would happen and this came up. s/greg At 09:06 AM 4/22/99 -0700, you wrote: >Greg, > This is interesting! Do we know which Abraham Behymer this was? >Do you know a birth date or anyway to specifically identify him? >Rob > >gdbehymer wrote: >> >> U.S. Supreme Court >> >> TEXAS & P. R. CO. v. BEHYMER, 189 U.S. 468 (1903) >> >> 189 U.S. 468 >> >> TEXAS & PACIFIC RAILWAY COMPANY, Plff. in Err., >> v. >> ABE BEHYMER. >> No. 224. >> >> Argued March 20, April 6, 1903. >> Decided April 20, 1903. >> >> Messrs. David D. Duncan, John F. Dillon, and Winslow S. Pierce for >> plaintiff in error. >> >> Mr. Cone Johnson for defendant in error. >> >> The opinion of the court was delivered by Mr. Justice Holmes: >> >> This is an action for personal injuries, brought by an employee against a >> railroad company. It was >> tried in the circuit court, where the plaintiff had a verdict. It then was >> taken to the circuit court of >> appeals on a writ of error and bill of excep- [189 U.S. 468, 469] tions by >> the company, and now is >> brought here on a further writ of error, the company being a United States >> corporation. A good deal >> of the argument for the railroad is devoted to disputing the testimony of >> the plaintiff below and >> arguing that the verdict was excessive, but of course we have nothing to do >> with that. New York, L. >> E. & W. R. Co. v. Winter, 143 U.S. 60, 75, 36 S. L. ed. 71, 80, 12 Sup. Ct. >> Rep. 356; Lincoln v. >> Power, 151 U.S. 436, 38 L. ed. 224, 14 Sup. Ct. Rep. 387. We must assume >> the most favorable >> statement of the plaintiff's case to be true, unless some particular >> request for instructions makes it >> necessary to deal with conflicting evidence. That statement may be made in >> a few words. >> >> Behymer had been in the employ of the company as a brakeman about three >> months. On February >> 7, 1899, at Big Sandy, in Texas, he was ordered by the conductor of a local >> freight train to get up >> on some cars standing on a siding and let off the brakes, so that the >> engine might move them to >> the main track and add them to the train. The tops of the cars were covered >> with ice, as all >> concerned knew. He obeyed orders; the engine picked up the cars, moved to >> the main track, and >> stopped suddenly. The cars ran forward to the extent of the slack and back >> again, as they were >> moving up hill. The jerk upset Behymer's balance, the bottom of his >> trousers caught in a projecting >> nail in the running board, and he was thrown between the cars. It is true >> that the jury might have >> drawn a different conclusion from his evidence, or have disbelieved it in >> essential points, but they >> also were at liberty to find, as they must be taken to have found, that the >> foregoing statement is >> true. The car belonged to another road, but was in the charge of the >> defendant company, and, >> according to the statement of the counsel for the plaintiff in error, had >> been inspected before the >> accident, although we should have doubted whether the testimony meant to go >> so far. Behymer >> based his claim upon negligence in stopping the cars so suddenly with >> knowledge of his position >> and the slippery condition of the roof of the car, and upon the projection >> of the nail, which >> increased the danger and contributed to his fall. It should be added that, >> by a statute of Texas, if >> there was negligence, the fact that it was the [189 U.S. 468, 470] >> negligence of a fellow servant was >> not a defense. Tex. Gen. Laws 1897, Special Session, chap. 6, 1; 2 Sayles's >> Tex. Civil Stat. 1897, >> art. 4560 f. >> >> The fundamental error alleged in the exceptions to the charge is that the >> court declined to rule that >> the chance of such an accident as happened was one of the risks that the >> plaintiff assumed, or >> that the question whether the defendant was liable for it depended on >> whether the freight train was >> handled in the usual and ordinary way. Instead of that, the court left it >> to the jury to say whether the >> train was handled with ordinary care; that is, the care that a person of >> ordinary prudence would use >> under the same circumstances. This exception needs no discussion. The >> charge embodied one of >> the commonplaces of the law. What usually is done may be evidence of what >> ought to be done, but >> what ought to be done is fixed by a standard of reasonable prudence, >> whether it usually is complied >> with or not. Wabash R. Co. v. McDaniels, 107 U.S. 454, 27 L. ed. 605, 2 >> Sup. Ct. Rep. 932. No >> doubt a certain amount of bumping and jerking is to be expected on freight >> trains, and, under >> ordinary circumstances, cannot be complained of. Yet, it can be avoided, if >> necessary, and when >> the particular and known condition of the train makes a sudden bump, >> obviously dangerous to >> those known to be on top of the cars, we are not prepared to say that a >> jury would not be warranted >> in finding that an easy stop is a duty. If it was negligent to stop as the >> train did stop, the risk of it >> was not assumed by the plaintiff. Texas & P. R. Co. v. Archibald, 170 U.S. >> 665, 672, 42 S. L. ed. >> 1188, 1191, 18 Sup. Ct. Rep. 777. >> >> However, the plaintiff did not rely on the management of the train alone. >> The projecting nail was >> another element in his case. The jury were instructed with regard to that, >> that the railroad company >> was not liable unless there was a nail there improperly projecting, and a >> reasonable inspection >> would have discovered and remedied the defect. The car was in the custody >> of the company. >> There is no suggestion that the company had not had an opportunity to >> inspect, and the contrary >> was assumed by a request for instructions on the part of the company. >> Indeed, as we have said, >> its counsel interprets the evidence as meaning that the car had been >> inspected before [189 U.S. 468, >> 471] the accident. It is not pressed that there was error on this point. >> See Mackin v. Boston & A. R. >> Co. 135 Mass. 201, 46 Am. Rep. 456; Glynn v. Central R. Co. 175 Mass. 510, >> 512, 56 N. E. 698. >> The jury were instructed properly on the subject of assumption of risks and >> contributory >> negligence, and we think it unnecessary to deal more specifically with this >> part of the case. >> >> It was argued that Behymer had aggravated the injury by refusing proper >> surgical treatment. With >> regard to this the jury were instructed in substance, but at more length, >> that it was his duty to submit >> to all treatment that a reasonably prudent person would have submitted to, >> in order to improve his >> condition, and that no damages could be allowed which might have been >> prevented by reasonable >> care. It is suggested that, as a prudent man, he might have postponed >> recovery from his injury to >> recovery of damages. The instructions plainly excluded such a view. The >> argument hardly is >> serious. We have examined all the minute criticisms on the rulings and >> refusals to rule, and >> discover no error. We deem it unnecessary to answer them in greater detail. >> >> Judgment affirmed. >> >> ==== BEHYMER Mailing List ==== >> Behymer webpage: BillyBob's Genealogy Homepage >> http://members.iglou.com/wbehymer/ >> Thanks, BillyBob! > > > >==== BEHYMER Mailing List ==== >Picklesimer webpage: Shawna's Genealogy Page >http://www.concentric.net/~shahall/ >Thanks, Shawna! > > >