Missouri, K. & T. Ry. Co. of Texas v. Luten

• Decision Date: 04 May 1918
• Docket Number: (No. 7961.)
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. LUTEN et al.
• Court: Texas Court of Appeals

203 S.W. 909

MISSOURI, K. & T. RY. CO. OF TEXAS v. LUTEN et al.

(No. 7961.)

Court of Civil Appeals of Texas. Dallas.

May 4, 1918.

Rehearing Denied June 1, 1918.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Action by Mrs. E. E. Luten and others against the Missouri, Kansas & Texas Railway Company of Texas to recover for wrongful death. Judgment for plaintiffs, and defendant appeals. Affirmed.

A. H. McKnight, of Dallas, W. E. Spell, of Waco, and Collins, Morrow & Morrow, of Hillsboro, for appellant. Wear & Frazier, of Hillsboro, for appellees.

TALBOT, J.

This is the second appeal of this case. 184 S. W. 798. The suit was instituted by Mrs. E. E. Luten, for herself and as next friend for her four minor children, to recover of appellant damages sustained on account of the death of her husband, and the father of said children, E. E. Luten, who it is alleged was killed on April 1, 1914, as a result of being negligently struck by one of appellant's trains at a public dirt road crossing. The acts of negligence charged and which were submitted to the jury as issues of fact, are: (1) That appellant's servants in charge of the train negligently ran it, in approaching and passing over the crossing, at a dangerous rate of speed; and (2) that said servants in charge of said train negligently failed to blow the whistle or ring the bell of the engine in approaching the crossing as required by law. It is also charged, in effect, that appellant's servants in charge of said train saw E. E. Luten, the deceased, on appellant's railroad track and, after realizing his danger from the approaching train operated by them, negligently failed to use the means at their command to stop the train and avoid striking the deceased, but, on the contrary, negligently ran said train against him, and inflicted the wounds which resulted in his death.

The appellant answered, specifically denying that the dirt road crossing, where it is alleged that the deceased was struck and killed, was a public road crossing, or one commonly and habitually used by the public as such. Appellant also denied that it was guilty of any of the acts of negligence charged, and alleged that the injuries received by the deceased on the day in question resulted from his own negligence and carelessness, in that he was a trespasser upon defendant's railroad track at the time of the accident, using it as a footpath; that he was extremely deaf, which was unknown to appellant until after the accident, but known to all of the members of his family; that deceased had been warned by his family and friends that his conduct in trespassing upon the track of appellant would sooner or later result in his death, but that, notwithstanding such warning, he continued to use the same as a footpath. Appellant further answered by saying that, when its servants operating the engine which struck the deceased discovered that the deceased was upon its track, they immediately rang the bell, and kept it ringing until the deceased was struck, and blew the whistle of the engine, giving what is known as the stock alarm whistle, which is two long and two short blasts; that the deceased appeared to have heard the said alarm signals given, as he veered from about the center of the track to near the east rail of the track, and appellant's servants believed that he was leaving the track; that at the very moment they discovered he was continuing northward on the track, and did not intend to leave it, they did everything in their power with the means at their command to reduce the speed of the train, stop the same, and prevent the striking of the said Luten. A jury trial resulted in a verdict and judgment in favor of appellees for $6,000. From this judgment the appellant perfected an appeal.

The first assignment of error complains of the trial court's refusal to give a special charge, requested by appellant, directing the jury to return a verdict in its favor. The proposition advanced under the assignment is as follows:

"Where, as here, the evidence as a matter of law is insufficient to support a judgment in favor of plaintiff, it is the duty of the trial court, especially upon request, to instruct a verdict for the defendant."

The appellant, under this assignment and proposition, sets out the testimony at length and argues that it shows conclusively that it was through no fault or negligence of its servants that E. E. Luten lost his life; that it discloses beyond dispute that the deceased, Luten, was not struck by the train while he was in the act of passing over the dirt road crossing, but at a point 200 or 300 feet north of this crossing and while a trespasser upon appellant's property, and after the operatives of the train had done all they possibly could do, by the use of the means at their command, to stop the train and avoid striking Mr. Luten after discovering his perilous position; that if, by any possible construction of the testimony, it can be said that the deceased, Luten, was struck by the train while he was attempting to pass over appellant's railroad track at the dirt road crossing, said testimony further shows beyond controversy that appellant's servants in charge of said train gave the statutory signals in approaching said crossing, and was in no manner whatever guilty of negligence which proximately caused the accident and death of the said Luten.

We make the following findings and statement of the testimony:

The deceased lived west of the appellant's railroad and about 400 yards northwest of the crossing in question. A short time before the accident causing his death he left home, carrying a shotgun. The railroad, where it intersects the dirt road leading from the deceased's house, runs practically north and south, and the dirt road practically east and west. At this intersection of said roads the railway company had constructed, and maintained for many years prior to the death of the deceased, Luten the crossing in question, and the same had been commonly and habitually used by the public for travel during all those years. About 9 o'clock of the morning the deceased left home with his gun, a train operated by the appellant's servants passed over the road crossing going north. At this time two reports of a gun at or near the crossing were heard by some of the witnesses who testified in the case, and immediately thereafter a train whistle, giving two short blasts, was heard at or about the same point, and the train stopped immediately thereafter. In perhaps an hour, or less time, after this, the body of the deceased, Luten, was found at the estimated distance, according to testimony offered by appellees, of 40 or 50 feet north of the crossing and about 15 feet east of the railroad track. When found, Mr. Luten was dead, his gun broken, and both barrels had been discharged. There was a wound on his right side, below the arm and shoulder blade. The right leg was broken. The wound on the leg was on the right side of the leg. The deceased's hat was found on the ground about 15 feet north of the crossing and on the east side of the railroad bed. About 30 feet north from the crossing, on the east side of track, some letters belonging to the deceased were also found. There was also near this place where blood was found an indentation in the ground at the end of the cross-ties, as if some object had struck there. There was another such place about 70 feet from the crossing and 16 feet east of the railroad track, and there was blood on the weeds there.

H. B. Idaho, an undertaker, testified that he embalmed the body of the deceased after removing the clothing and washing it. He said the deceased "had one wound on the right side, under the right arm; it was an incision like wound; looked like it was torn in the body, right smart sized wound"; that he found another wound on the right side of the head near the temple; that the right leg was broken, and that the wound on the right leg was on the right side of the leg. The railroad bed or dump at the crossing was about 10 feet high and on the morning of the accident there was a very dense fog. Mrs. Luten heard the noise of the train as it passed, but on account of the fog could not see the train. The deceased was a sober, industrious farmer. His hearing was defective, but, if spoken to in a loud tone of voice close to him, a conversation could be carried on with him. His wife, Mrs. Luten, said: "He could hear a train blowing."

The engineer operating the engine drawing the train on the morning of the accident testified that he had been familiar with the crossing in question for about 17 years; that as he approached said crossing on the morning E. E. Luten was killed he sounded the road crossing whistle and rang the bell; that he saw a man on the track, who he afterwards learned was Mr. E. E. Luten; that when he first saw him he was 150 or 200 yards ahead of the engine; that it was very foggy when he approached the crossing; that when he first saw Mr. Luten on the track he could not tell that he was a man, could just tell that an object was on the track; that when he sounded the whistle he veered to the right of the track, and he thought he was going to get off, but did not do so; that when the deceased did not get off the track he began the stock alarm whistle and put on the emergency brakes and opened the sand box; that when he first saw the deceased the train was running 40 miles an hour, and that when the engine struck him it was running about 20 or 25 miles an hour; that when he began the stock alarm whistle the engine was something like 100 yards from the deceased, but that the deceased did not seem to notice it and continued up the track. He further said the deceased was struck just north of, and about 200 or 300 feet from, the crossing; that he did all he possibly could to stop the train, after he saw that the deceased did not leave the track, to avoid striking him; that when the train struck the deceased he...