Gulf, C. & S. F. Ry. Co. v. York

• Decision Date: 18 June 1889
• Citation: 12 S.W. 68
• Parties: GULF, C. & S. F. RY. CO. <I>v.</I> YORK.
• Court: Texas Supreme Court

12 S.W. 68

GULF, C. & S. F. RY. CO.v.

YORK.

Supreme Court of Texas.

June 18, 1889.

Commissioners' decision. Error from district court, McLennan county.

W. M. Flournoy, for appellant.

HOBBY, J.

Under the view we take of this case it will be unnecessary to dispose of consecutively each assignment of error presented, but will consider such only as we regard most important, and which, in our opinion, requires a reversal of the judgment. The plaintiff sued defendant to recover actual and exemplary damages for injuries inflicted on her minor son, D. A. York, through the alleged negligence of defendant's engineer in charge of its locomotive engine. It was alleged that the injuries permanently disabled her son mentally and physically, and deprived her of the benefit of his services and earnings during his minority, and for which $5,000 actual damages were sought, and $2,500 exemplary damages were claimed by reason of the wanton, willful, and malicious acts of defendant's employés in not stopping said train, or giving signals, etc. The verdict was: "We, the jury, find for plaintiff the sum of $500."

The thirteenth and fourteenth assignments raise the question of the sufficiency of the evidence to support the verdict, and are to the effect that the verdict is contrary to the evidence, because the testimony shows the injuries of D. A. York to have resulted from his own negligence and voluntary act.

Plaintiff's witness Reed testified that he was with D. A. York at the time of the injury on October 24, 1884, at Temple, in Bell county. "We left Temple that night, going home. Witness lived with York's mother, about seven miles from Temple. We were walking on the Santa Fe Railroad in that direction. At Temple the Mo. Pac. R. R. crosses the Santa Fe close to the Mo. Pac. depot. We left Temple about 10 o'clock at night. It was a tolerable dark night; drizzling rain, — not much, just sprinkling. York and myself were not looking ahead. Wind blowing pretty hard from the north. It struck us on the side of the face. We had on hats, pulled down over our faces to keep the rain from hitting us in the face. York and I had large broad-brim hats. He was about 10 feet ahead of me. The train knocked York off the track. At that time we were on the Santa Fe Railroad. We had crossed the Mo. Pac. R. R. about 350 feet. I saw the train about the time it struck York; not before. Heard no bell or whistle. York and myself were walking south. The train was going north. We were going meeting the train. I did not see the train until it struck York, and I was in ten feet of York. We were walking along the outside of the track on the ends of the ties. We had our hats pulled down over our eyes. We were looking straight down. We didn't hear the train and were not looking for a train. Did not see the head-light until it struck York. Didn't see it down under my feet. It had a headlight. York had not been drinking. He was cool, sober. I never knew him to be drunk. I was with him all the evening and night. Guess we were 350 feet from the Missouri Pacific depot. * * * I saw the back part of York's hat up, and know his hat was pulled down over his eyes. Didn't see the head-light till I looked up."

D. A. York testified for plaintiff: "We left Temple that night about 11 o'clock going home. We lived about six miles from Temple, at my mother's, south of Temple. It was a tolerable dark night, and it was raining. We were walking on the Santa Fe Railroad. We had just got across the crossing where the Missouri Pacific crosses the Santa Fe. I was not looking ahead. I had my hat down over my eyes to keep the rain out. The wind was blowing from the north on the side of my face. My hat was a big, white, broad-brimmed hat, a new hat bought that evening. The engine and train, coming up north, struck me on the Santa Fe Railroad. They backed the train, and put me in the caboose. I did not see or hear the train before it struck me. I heard no bell or whistle. When they put me on the train they carried me to Temple, and left me in the caboose that night. I was struck about a quarter of a mile from Temple."

A witness, John G. Agars, testified for the plaintiff that "he had discharged the duties of fireman on the Texas Central Railroad. That the fireman's station is generally with the engineer. He has an opportunity for looking ahead once and awhile when not putting in coal. Thought an engineer, on a tolerably dark night, the train running 15 miles an hour, could see the width of this room. Could see an object, but not tell exactly what it was. Thought he could see a man ahead of him in time to signal. Might not check up the train. Could check slightly. If there was a man on the road walking on the track with his hat over his eyes the engineer could see the man, but not his condition."

T. J. Hamil, for defendant, stated that "he was fireman on the engine on the night of October 24, 1884. Saw York fifty steps from the engine, walking in the middle of the track; train running north, the man going south. Train was running about 12 miles an hour. It was 21½ miles from Temple, and one and a half miles south of the crossing of the G., C. & S. F. R'y and M. P. R. R. when I first saw him. I rang the bell. Can't say whether the engineer gave any signal. Engine had a head-light burning brightly."

Such is a full statement of the facts and circumstances disclosed by the record, under which D. A. York was injured. It is shown by the testimony of his mother that he was not quite 18 years of age at the time of his injury. It is manifest, we think, from the evidence of the injured party himself, which was fully supported by his companion, Reed, that the former did not exercise the most ordinary care, or the least degree of prudence, which it has been repeatedly held in this and other states is required by a person walking on a railroad track. The failure to listen and look, while on the track, to avoid an approaching train, is, as has been said, not merely an imperfect performance of duty, but an entire failure of performance which will bar the right to recover damages if it contributed proximately to the injury. A person who voluntarily exposes himself to such dangers as this, from which he might have saved himself by the proper use of his senses, contributes directly to his own injury, and no cause of action lies. Railroad Co. v. Bracken, 59 Tex. 73. In the case before us it is not only apparent from the plaintiff's evidence that no care or prudence whatever was exercised by York, but he voluntarily placed himself on the track, in a position necessarily exposing him to dangers, and instead of using his senses of sight and hearing to avoid them, by his own act deprived himself of this means of protection by shutting out his vision and impairing his hearing by placing his "broad-brim, big white hat" over his eyes, and "looking straight down." That the injury...