211 S.W. 305 | Tex. App. | 1919
Lead Opinion
Gober sued .the railway company for damages on account of personal injuries sustained by him in being run over by a car propelled by a switch engine of appellant company. The negligence alleged is the failure of the train crew to take notice of appellee’s danger, and to keep proper lookout and give warning at the approach of the engine and cars, and to blow the whistle or ring the bell. The injury occurred on the 28th of November, 1914, in the switchyards of the appellant in the city of Wichita Falls. The appellee’s son-in-law was at work on a switch engine belonging to the Missouri,
“Find whether or not, before going onto the railroad track of the defendant railroad, where the plaintiff was hurt, whether or not the plaintiff stopped, looked, and listened before going onto the said railroad track, where he was injured.”
The appellee testified he looked back north, and located the switch engine before he got on the track. The appellant introduced a witness, who took appellee’s statement shortly after his injury, and testified that he made the statement, “When I got to this side track I never looked back on the track.” This is. not a statement that he did not look “before” going onto the track, and is not contradictory to his testimony that before he crossed he looked, but is consistent with his other testimony that after he got on the track he did not look back. We think the jury have ample evidence to support their finding on this issue.
The fifth and sixth assignments are overruled. The evidence we think authorized the submission of issue No. 8.
The tenth and eleventh assignments will be overruled.
We believe under the assignments and the facts of this case the judgment of the trial court should be affirmed.
other cases see same topie and KEY-NUMBER in all Key-Numbered Digests and Indexes
Lead Opinion
Gober sued the railway company for damages on account of personal injuries sustained by him in being run over by a car propelled by a switch engine of appellant company. The negligence alleged is the failure of the train crew to take notice of appellee's danger, and to keep proper lookout and give warning at the approach of the engine and cars, and to blow the whistle or ring the bell. The injury occurred on the 28th of November, 1914, in the switchyards of the appellant in the city of Wichita Falls. The appellee's son-in-law was at work on a. switch engine belonging to the Missouri, *306 Kansas Texas Railway Company, which operated over the same tracks and yards. It was the custom of the wife or of appellee, Gober, to carry to the husband and son-in-law his lunch each day while he was at work with the engine. It was their custom to meet him at a point where Fourth street of the city ran through a viaduct under the tracks of the switchyards. The tracks at this point were on a dump some eight or ten feet above the roadway of the street, but it appears there was a path leading up the embankment, by which pedestrians could reach the level of the tracks. If the appellee did not find his son-in-law at this point with the engine, he went south along the track, and sometimes met him between that point and the Union Depot, which was situated about Eighth street. If he did not meet him he proceeded to the Union Depot, where the lunch was left for him. The evidence shows between Fourth and Seventh streets there was no regular street crossing the track 1; that is, Fifth and Sixth streets do not cross the tracks, but pedestrians have footways crossing at those streets, and use the way constantly, and have done so for years with the knowledge of the railway company employés. The testimony authorized the finding that the tracks and dump on which the switches are placed were used constantly by men traveling along the railway towards the depot, and Seventh street, or with the road running north and south. On the occasion in question Gober took the lunch, as was his custom, to meet his son-in-law at the Fourth street crossing. When he got there he did not see him or his engine, and proceeded south to meet him, as was the practice. As he started south he was traveling, as we gather from the evidence, by the side of the track, until he came to the switch for house track No. 2, which runs west of the freight depot. He saw coming north towards him on house track No. 2 a switch engine. He stepped over on house track No. 1, which runs east of the freight depot. He followed this south until he came to some cars on that track, and then stepped over on the main line track. On this he saw the local coming down the track towards him, and he left the main line and stepped east to track No. 1, upon which the injury occurred. He testifies that when he left house track No. 1 he looked north and saw the switch engine going north and on, a different track to No. 1. He also testified that on leaving the main track he glanced north, and still saw the engine going in a northerly direction. His testimony on cross-examination is susceptible of the construction that after he got on track 1, where the injury occurred, he did not look back or see the engine. It is inferable that when he left the main line the engine was 100 or 200 yards north of him. After he got on track 1 he traveled south, with his back to the engine and car which struck him. This engine, after passing a switch north of the injury, backed south on track 1, pushing a car. The engine and train on the main track passed the appellee about the time he was struck, and was making considerable noise. The facts are sufficient to show, had the crew with the engine, which struck appellee been looking, they could have seen appellee on the track from the switch where they started back; that there was no obstruction to prevent their doing so. They did not sound the whistle or ring the bell, and did not observe appellee until they were on him, too late to stop the car, and that appellee did not know of its approach until it Struck him, knocking him down. One pair of the trucks of the car ran over him and mashed his arm so that amputation was necessary. The facts show that the tracks of appellant had been used as a passageway for years by pedestrians, and that this was known to the employés of appellant. The court submitted the case upon special issues. The jury found negligence as alleged. That appellee was not guilty of contributory negligence, and assessed his damages at $2,500. The court rendered judgment accordingly.
The first and second assignments are to the effect that the court should have directed a verdict for appellant because the evidence shows if appellee had looked before entering upon the track he could have seen appellant's switch engine and car, and that appellee stepped immediately in front of them without taking any precaution to see if he could do so with safety. Going upon the railroad track at the place appellee did in this instance was not negligence per se, and is not so declared by our statutes or by the courts. The circumstances under which appellee went upon the track are merely evidence upon the issue of contributory negligence. Even if in going upon the track the appellee was a wrongdoer or trespasser at the time of the injury it would not necessarily follow that he was guilty of contributory negligence. It is true ordinarily that he would be, but not under all circumstances. The evidence in this case shows he was a licensee, and that the way he traveled along the track was one frequently used by people of the city and himself. The evidence warranted the jury in finding that before he stepped on the track upon which the accident occurred he looked, and that, according to his then observation, the engine that struck him was going north and in an opposite direction to that which he was traveling on a different track. After he got on the track he had his back to the engine, and turned south and walked a short distance, when the engine came up behind him without a warning, and too late to stop, and ran him down. We believe under all the facts of this case it was for the jury to say under the *307
circumstances then surrounding appellee whether he acted as an ordinarily prudent person would have done. Railway Co. v. Watkins,
The third assignment asserts it wax error to refuse to direct a verdict for appellant because there was a safer and better route, and that he negligently chose the more dangerous; that he could have gone by a route beside the tracks, etc. Appellee went to Fourth street to meet the engine operated by his son-in-law. On arrival he did not meet the engine, and he sought to meet the engine there on the track between that place and the Union Depot, where he would leave the lunch, if in the meantime he did not meet the son-in-law. The facts show that there were two or three ways to go to the Union Depot from the home of appellee, or rather that of his daughter, but in going those ways he would not meet the son-in-law where it was usual and customary, and if he did not meet him at that point, as we understand the facts, he would have to go down the dump to the way or street outside the tracks. There is also evidence that he could have gone between the tracks, but it was shown that there was mud and water between, and none on the tracks. Under all the facts we believe it was a question for the jury. The proposition asserted by the assignment has frequently been discussed by the courts. The Longino Case,
The fourth assignment asserts there is no evidence to support the answer of the jury to the sixth issue. The jury answered in the affirmative issue No. 6, which is:
"Find whether or not, before going onto the railroad track of the defendant railroad, where the plaintiff was hurt, whether or not the plaintiff stopped, looked, and listened before going onto the said railroad track, where he was injured."
The appellee testified he looked back north, and located the switch engine before he got on the track. The appellant introduced a witness, who took appellee's statement shortly after his injury, and testified that he made the statement, "When I got to this side track I never looked back on the track." This is not a statement that he did not look "before" going onto the track, and is not contradictory to his testimony that before he crossed he looked, but is consistent with his other testimony that after he got on the track he did not look back. We think the jury have ample evidence to support their finding on this issue.
The fifth and sixth assignments are overruled. The evidence we think authorized the submission of issue No. 8. *308
The seventh and eighth assignments and propositions thereunder assert there was no evidence on the issue of negligence on the part of the operators of the engine which struck appellee. We believe there was evidence which would authorize a finding that the track where appellee was injured was commonly used by the public, and that persons then and for years passed along at that point, which was within the knowledge of the train crews working in the yards. That the way was open with no obstructions from where the engine started back south along the track appellee was traveling, and nothing which prevented the crew from seeing appellee within time to have prevented the injury. The engine was backing, pushing a car which obstructed the view of all the crew except a fireman, whose duty it was to look after the rear, but at that time he had left his post of observation; that the engineer failed to keep a lookout to the rear, and failed to see that the fireman, who was under his orders, did so. The brakeman on the rear end of the car, whose duty it was to keep a lookout, failed to observe appellee, though there was nothing to obstruct his view until he was almost on him, and then failed to give proper stop signals. That the bell was not rung or the whistle sounded. We think the issue was properly submitted to the jury, and that there was no error on the part of the court in submitting the same.
The tenth and eleventh assignments will be overruled.
We believe under the assignments and the facts of this case the judgment of the trial court should be affirmed.
Believing that the facts and circumstances of this case raise the question of contributory negligence as a fact and not as a matter of law, we held the court properly submitted that question to the jury. We believe the motion for rehearing should be overruled. *309
Rehearing
On Motion for Rehearing.
Believing that the facts and circumstances of this case raise the question of contributory negligence as a fact and not as a matter of law, we held the court propei-ly submitted that question to the jury. We believe the motion for rehearing should be overruled.
