22 S.W. 939 (Tex. 1893), McDonald v. International & G.N. Ry. Co.

Citation:22 S.W. 939, 86 Tex. 1
Opinion Judge:GAINES, J., (after stating the facts.)
Party Name:McDONALD et al. v. INTERNATIONAL & G. N. RY. CO.
Attorney:[86 Tex. 2]S. R. Fisber, for plaintiff in error. [86 Tex. 3] A. S. Fisher and John C. Townes, for defendants in error.
Case Date:June 15, 1893
Court:Supreme Court of Texas
 
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Page 939

22 S.W. 939 (Tex. 1893)

86 Tex. 1

McDONALD et al.

v.

INTERNATIONAL & G. N. RY. CO.

Supreme Court of Texas

June 15, 1893

Error from court of civil appeals, third supreme judicial district.

Action by Mary McDonald and others against the International & Great Northern Railway Company for the death of plaintiffs' decedent. There was a judgment by the court of civil appeals (20 S.W. 847) reversing a judgment for defendant, and the latter brings error. Reversed.

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[86 Tex. 2]S. R. Fisber, for plaintiff in error.

[86 Tex. 3] A. S. Fisher and John C. Townes, for defendants in error.

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The other facts fully appear in the following statement by GAINES, J.:

[86 Tex. 4] This case was before this court on a former appeal, and is reported in 75 Tex. 47, 12 S.W. 860. Upon the last trial there was a verdict and judgment for the defendant, the International & Great Northern Railway Company. The suit was brought by the widow and children of one Dr. McDonald to recover of the defendant corporation damages for his death. He was alleged to have been killed by a train of the defendant, through the gross negligence of its servants who were operating it.

The substance of the testimony, in so far as it bears upon the questions involved in the appeal, is stated as follows in the brief of appellant's counsel as filed in the court of civil appeals:

Dr. McDonald, the husband of Mrs. Mary McDonald, and father of the other plaintiffs, resided at Round Rock. Hutto is a station on the International & Great Northern road some 10 or 12 miles east from Round Rock, having, June 30, 1886, a few hundred inhabitants. The station house and ticket office were on the north side of the main track, between it and a switch or side track on north side of the building. The business portion of the village was south of the railroad, and east of the station house, and the residence portion mostly all on the north side of the track. Carpenter's store is some 260 yards east of the station house, [86 Tex. 5] and about 40 yards south of the track. There were four public roads crossing the railroad track within a distance of 692 yards east of the depot; the nearest being, on its nearest side, about 20 feet from the east end of the platform, and the furthest about 2,077 feet east from the depot. There was a street running parallel with the track and south of it, between the company's right of way and the business houses, and all between these houses and the track was open. The country for many miles in every direction is open prairie. From Carpenter's store to the depot the usually traveled way leads from his store door, in a northerly direction, nearly to the track, then almost parallel with the track until almost to the end of the depot platform, which was just south of and extending a little east of the depot building where said way crossed the track. This crossing at the depot was the one used by parties in loading and unloading on the platform, and by the public generally, having occasion to go from the business part of the town to the depot. On the morning of June 30, 1886, Dr. McDonald had been called to Hutto, to see a patient. His purpose was to return to Round Rock that night. The schedule time for the south or west bound passenger train at Hutto was then between 4 and 5 o'clock P. M. At that hour the doctor was at the station, ready to embark, but the train did not come in, as he was told by the station agent that it was about three or four hours late. He procured his ticket. As the train would not be along till late, the doctor went up to Mr. Carpenter's house, and took supper; and, as that gentleman was going off on the same train, the doctor went with him after supper to his store, to await the arrival of the train. Night came on. The freight trains uniformly blew or whistled for this station at a point near the stock guard east from the station house, and passenger trains between this stock guard and the bridge, at a point from 300 to 400 yards nearer the depot than the place where freight trains were accustomed to whistle. Headlights on trains approaching at night from the east could be seen several miles. At about 8 o'clock, Carpenter and McDonald still being at Carpenter's store, Carpenter looked out, and saw a headlight of a train approaching from the east a mile and a half or two miles distant. He watched it until it passed the point where freights were accustomed to whistle. It passed without any signal. He concluded that it was the belated passenger, and so informed Dr. McDonald. Dr. McDonald was deaf. Carpenter and the doctor started from his store to go to the depot. Upon reaching the gallery of his store, Carpenter went back, to be sure about the lights and the fastening of his store. When he again came to the front, the doctor was some distance on his way to the depot. The train passed the usual signal point for freights, and again failed to blow the whistle. Carpenter, from his position, saw that it was a freight. Dr. McDonald continued on his way to the depot,--by just what route is left uncertain, some testimony tending to show that he was in the road just [86 Tex. 6] south of and parallel to the track, and some that he was in the road, but in the space between it and the track. Passengel trains were in the habit of always stopping at the depot, and almost always

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slackened their speed east of and before reaching same, to enable them to stop just opposite. Freight trains almost invariably did the same thing. A large number of witnesses swear that no whistle was blown or bell rung until the train had reached or passed the depot. The brakemen and conductor state that they do not remember any signals prior to the whistle for brakes just after the doctor was hurt. The fireman and engineer state that the whistle blew about a half a mile east of the depot, and the bell rang for some distance before Dr. McDonald was struck. The train was going, at the time Dr. McDonald was struck, at a speed estimated at its lowest rate at 12 miles and the highest rate at 35 miles an hour. It did not slow up or lessen its speed at all until the doctor was hit. Neither the engineer nor conductor nor brakeman saw the doctor before he was struck.

The fireman gives the occurrence as follows: 'All the facts and circumstances, as near as I can remember, concerning the accident, are as follows: We were passing through Hutto. I saw a man approaching the railroad track from the south side. He was within 25 or 30 feet of said track, and running quite fast towards the depot. We were then about 150 feet from the depot and about 100 feet from where he was going to cross the track. When I first saw him I called to him to look out. The engine bell was then ringing; and when we were within about 50 or 60 feet of said depot building he stepped on the track, immediately in front of the engine, and it struck him, and threw him to the south side of the track. At the time Dr. McDonald was struck I think the train...

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