96 Tex. 24 | Tex. | 1902
The opinion of the Court of Civil Appeals in this case was as follows :
This is a suit to recover of appellant damages for the death of Pellew Cowles, the husband of appellee. The cause was tried by jury and resulted in a verdict and judgment for appellee in the sum of $15,000.
“The following charge was given to the jury: Tf you believe from the evidence that the said Pellew Cowles, while on the track of the International & Great Northern Railroad, was struck, run over, and killed
“It was established by the uncontroverted facts that deceased, in company with H. W. Browder, started from the freight depot, which was on the east side of three railway tracks, to cross over to the west side, and on account of a number of freight cars standing on-the middle track they did not pass straight across the yard but went to the end of the line of cars, the last of which was a flat car standing several feet from the wagon crossing, and stopped to examine the coupler on the flat car. While thus engaged and while deceased was in the act of kicking the coupler that had been thrown back by- Browder, the flat car was backed against deceased, and ran over and killed him.
“If the appellant knew that deceased was on the track engaged in working with the coupler, it owed him the duty of warning him of the intention to move the car, but if it did not know that he was on the track, it owed him no duty. It is true that it was in proof that it was customary for pedestrians to use any part of the yard in crossing the track, and whilst such use without protest may have given a license to parties to cross the tracks at any point, and may have devolved on the
“In the case of Kelley v. Railway, 31 Northwestern Reporter, 904, it was said by the Supreme Court of Michigan: ‘The highway crossing is for the purpose of passage from one side of the railroad to the other, and any other use thereof, whether between the tracks or between the rails, is unwarranted.’
“The presence of deceased upon the track was not because of the fact that any part of the tracks in the yard was used as a passageway, but he was there on other grounds totally disconnected with a passage over the track. As said by the Supreme Court of Ohio in Railway v. Marsh, 52 Lawyers’ Reports Annotated, 142: TIis right and the liability would have.been the same if the track of the railroad company had never been used as a line of travel, or if the injury had occurred while the boy was going to the switch stand south of the highway, where the railroad was not used as a line of travel, so far as appears in this case.’ The principle is the same as that held in Kelley v. Columbus, 41 Ohio State, 263, where the court says: Tf there had been a business room in the building, qr upon another part of the lot, which would have been an implied invitation to the public to go there, it still would not help the plaintiff, when he admits that he did not go upon the lot for any such purpose.’
“There is some conflict of authority as to who may claim the benefit of statutory signals, but it is usually held that where the statute does not specifically name the class of persons to whom the duty is owing, it is due only to those who are about to use, are using, or have lately used the crossing, and that no others could recover for injuries resulting from a failure to give the signals.
The Court of Civil Appeals erred in holding that the railway company owed to deceased no duty to discover him on the track and of warning him of his danger, unless it knew that he was then on the track, because the place at which he was killed had been for years commonly and habitually used by the public as a walkway and public thoroughfare within the knowledge of the railway company and its servants who were then and there operating the train, and with the tacit consent of and without objection by the appellant; and the law .made it the duty of such servants to keep a lookout for persons that might be expected to be on said track at said place, and to avoid injuring them. Railway v. Smith, 87 Texas, 359; Railway v. Crosnoe, 72 Texas, 79; Railway v. Schuster, 7 S. W. Rep., 874; Railway v. Hewitt, 67 Texas,
“The evidence, we think, presents a clear case of contributory negligence. The only witness who was in a position' to know the circumstances surrounding deceased at the time of the accident testified that he, in company with deceased, walked upon the railroad track near the end of a flat car which was attached to a coal car and eight or ten box cars, all of which were standing on a track in the railroad yards, and stopped to examine a coupler on the flat car, at the request of deceased. Both of the men were behind the end of the car, Cowles standing between the rails and Browder with one foot within the rails and the other without. When Cowles was struck he was standing on one foot in the act of kicking the coupler, and Browder was leaning over toward him manipulating the coupler. The accident did not occur on the crossing. Browder swore that before stopping he did not look nor listen for an approaching train, and did not see deceased do so. He did not know whether any signals were given or not. Mr. Cowles was a life insurance agent and had no business in connection with couplers on the cars. Browder swore tflat they were occupied with the coupler one or two minutes before the car moved. The least care or caution would have disclosed the fact that an engine was engaged in moving cars on the track on which deceased and Browder were standing.
“Because the evidence does not sustain the verdict, the judgment is reversed and the cause remanded.
And even if the doctrine of discovered peril was applicable to the facts, the Court of Civil Appeals erred in holding that there was no evidence that appellee’s servants saw deceased and his perilous position in time to have avoided running the ear against him, because there was ample evidence to- justify- the jury in concluding that the conductor who had charge of said train and of the members of the crew did see the deceased and his perilous position in- time to have warned him, or otherwise have prevented his death. Brown v. Griffin, 71 Texas, 659; Railway v. Tabor, 12 Texas Civ. App., 283; Railway v. Phillips, 40 S. W. Rep., 344.
The Court of Civil Appeals erred in holding that, although for the purpose of crossing the , track the deceased was a licensee, merely pausing on the track to examine the coupling appliance of the car made him a trespasser ab initio to whom the company owned no duty; because if , his entry was right in one event, it can not be held to be wrongful ab initio in another.
, The Court of Civil Appeals erred in holding that in stopping on the track to examine the coupler deceased was guilty of contributory negligence as a matter of law, .because the evidence shows that the car at which deceased had stopped had been standing at said place all day, and that deceased did not know that there was an engine in the yard or at the station at said time, and did not know that the same was about to be moved, and received no warning or notice that said engine was moving a train of cars or that the same was about to be moved. See authorities under first assignment of error herein, and also: Railway v. Best, 66 Texas, 116; Railway v. Lee, 89 Texas, 583.
The Court of Civil Appeals, erred in holding, in this case, that the
The Court of Civil Appeals further erred in holding that the failure on the part of appellant’s employes to give the statutory signals would not, as to deceased, in the place where he .was standing when struck, be negligence. Railway v. Gray, 65 Texas, 32; Railway v. Woodward, 63 S. W. Rep., 1053; Railway v. Brooks, 54 S. W. Rep., 1056.
The Court of Civil Appeals erred in holding, as a matter of law, that under the facts in this case the appellant was not guilty of negligence, and that the deceased was guilty of contributory negligence.
As the Court of Civil Appeals has no right to conclusively determine the facts of any case, when facts are in evidence in support of an issue, as in this case, the said court erred in conclusively determining the facts of the case, and thereby invading the province of the jury, and depriving appellee of her constitutional right of trial by jury. Choate v. Railway, 90 Texas, 88; same case, 91 Texas, 407; Washington v. Railway, 90 Texas, 315; Railway v. Lee, 89 Texas, 583. and authorities cited therein.
The license acquired by the public to the use of the tracks of the railroad company was the right of crossing the same as ordinary pedestrians, and when the deceased stopped to examine the coupler he became a trespasser and intermeddler to whom the railroad company owed no duty until his presence was discovered. Grunst v. Railway, 5 Am. and Eng. R. R. Cases, N. S., 373; Hall v. Railway, 44 N. E. Rep., 489; Oatts v. Railway, 22 S. W. Rep., 330; Railway v. Vittitoe’s Admr., 41 S. W. Rep., 269; Railway v. Mendoza, 60 S. W. Rep., 327; Kelly v. Railway, 8 Am. St. Rep., 879; Heinlein v. Railway, 9 Am. St. Rep., 678; Railway v. Breadow, 90 Texas, 26; Railway v. Staggs; 39 S. W. Rep., 295; Railway v. Shetter, 94 Texas, 196.
The trespass of the deceased could not have been reasonably anticipated by the employes of the railroad company, and they were therefore not required to guard against an accident arising therefrom. Railway v. Cocke, 64 Texas, 151; Railway v. Bingham, 90 Texas, 223; Electric Light Co. v. LeFevre, 93 Texas, 604; Railway v. Kieff, 1 Texas Ct. Rep., 456.
The issue of discovered peril was not raised in the District Court and should not be considered in the appellate court.
The finding of the appellate court upon this issue involves purely a finding of fact, and there being evidence to sustain it, this court is without jurisdiction to review it.
The facts do not raise the issue of discovered peril.
Under the undisputed facts the deceased was guilty of contributory negligence as a matter of law. Railway v. Roberts, 10 Am. and Eng. R. R. Cases, N. S., 727; Lyon’s Admr. v. Railway, 59 S. W. Rep., 507;
The giving of the statutory signals was immaterial to any issue in the case, because it affirmatively appears from the plaintiffs petition that the deceased could not have heard the same had they been given.
In this case the Court of Civil Appeals reversed the judgment of the trial court and remanded the cause. We took jurisdiction of the case and granted the writ of error because of the allegation in the petition for the writ that the decision of the Court of Civil Appeals “practically settled the case,” and because, as we thought, that allegation was true. Having examined the case upon its merits, and being of the opinion that the decision of the Court of Civil Appeals that “the evidence presents a clear case of contributory negligence” is correct, it becomes our duty to render judgment for the defendant in error.
There is no allegation in the petition to the effect that the servants of the railroad company discovered the peril of the deceased in time to have prevented the injury. The judgment of the Court of Civil Appeals in so far as it reverses the judgment pf the trial court is affirmed and judgment is here rendered for the defendant in error.
Affirmed and judgment rendered.