Atchison, T. & S. F. Ry. Co. v. Van Belle

• Decision Date: 05 June 1901
• Citation: 64 S.W. 397
• Parties: ATCHISON, T. & S. F. RY. CO. v. VAN BELLE et ux.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 397

64 S.W. 397

ATCHISON, T. & S. F. RY. CO. v. VAN BELLE et ux.¹

Court of Civil Appeals of Texas.

June 5, 1901.

Appeal from district court, El Paso county; J. M. Goggin, Judge.

Action by Ernest Van Belle and wife against the Atchison, Topeka & Santa Fé Railway Company and the Rio Grande & El Paso Railway Company. The case was dismissed as to the latter defendant. From a judgment in favor of the plaintiffs against the Atchison, Topeka & Santa Fé Railway Company, it appeals. Affirmed on condition.

Turney & Burges and J. W. Terry, for appellant. P. H. Clarke and Falvey & Davis, for appellees.

NEILL, J.

This suit was brought by Ernest Van Belle and his wife against the appellant and the Rio Grande & El Paso Railway Company, to recover damages for the death of their son, Emile, alleged to have been caused by the negligence of appellant in the construction and maintenance of a guard rail, between which and the main rail of defendants' road deceased's foot was caught, and the failure of the operators of the engine and cars attached thereto, after seeing, or failing to exercise reasonable diligence to discover, the perilous position of Emile, and thereby running the cars over him before he could extricate himself, and causing his death. The defendants pleaded a general denial and contributory negligence on the part of the deceased. The case was dismissed as to the Rio Grande & El Paso Railway Company, and as to appellant was tried before a jury, and the trial resulted in a judgment in appellees' favor for $8,000; $6,000 of which was awarded to deceased's mother, and $2,000 to his father.

Conclusions of Fact.

In November, 1898, Emile Van Belle, the son of appellees, who was an unmarried man, 22 years old, while in the employ of appellant, and engaged in his duties as a switchman in the city of El Paso, while in the exercise of ordinary care, without negligence on his part contributing to the accident or his injury, got his foot caught between the guard rail and the main rail of the track in appellant's yards. As soon as he found his foot was fastened between the rails, he signaled and called to the operators of the engine of the train, who had been taking the signals from him while cutting off and switching cars, to stop the train which was approaching him. Other parties who stood near, witnessing the perilous position of deceased, also signaled and called to the operators of the engine to stop the train. Appellant's servants operating the engine, by the exercise of ordinary care, would have discovered Emile's peril, and have stopped the train before reaching the place where he was fastened, but they either negligently failed to observe the signals, or, if they observed them, to heed them, and while Emile's foot was fastened between the rails, negligently pushed the cars against him, ran over him, and killed him. At the time of Emile's death his father was 64 years old and his mother 50. He was earning about $70 a month, which he gave to his father and mother in return for their supporting him, and with his earnings his mother and father and their two younger children and himself were supported.

Conclusions of Law.

1. We are unable to sustain the contention of appellant made in its first assignment of error, "that the undisputed evidence shows that deceased directed the movements of the train at the time he was killed; that just prior to his death he signaled the engineer, who was looking at him, to move the train northward; that in obedience to the signal, the engineer started the train, and, just as it started, the deceased moved from where he gave the signal, across the track, in front of the moving train, just passing out of the engineer's sight;" or "that the undisputed evidence shows deceased, after giving the signal to move the train, went between the cars while in motion, and by his negligence in doing so was killed." These contentions embody appellant's theory of defense. While there is some evidence to support it, appellees' theory of the accident is that shown by our conclusions of fact, and is sufficiently sustained by the evidence to warrant the jury in finding against appellant's contention, and in favor of the appellees, and to justify us in the conclusions stated.

2. In its second assignment of error appellant claimed that the court erred in failing to give the following special charge: "At the request of the defendant, you are charged as follows: That the evidence in this case wholly fails to show that the defendant, its agents, servants, or employés, were at the time Emile Van Belle was killed guilty of any act of negligence, or failed...