Atchison, T. & S. F. Ry. Co. v. Keller

• Decision Date: 28 October 1903
• Citation: 76 S.W. 801
• Parties: ATCHISON, T. & S. F. RY. CO. v. KELLER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

76 S.W. 801

ATCHISON, T. & S. F. RY. CO. v. KELLER.^*

Court of Civil Appeals of Texas.

October 28, 1903.

Appeal from District Court, El Paso County; J. M. Goggin, Judge.

Action by William H. Keller against the Atchison, Topeka & Santa Fé Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Turney & Burges and J. W. Terry, for appellant. Zach Lamar Cobb and M. W. Stanton, for appellee.

JAMES, C. J.

The action is by appellee for personal injuries sustained at appellant's station in Glorietta, N. M., by being struck by an engine while he was standing between appellant's tracks. Plaintiff went there to meet a passenger on the east-bound train, which train occupied the main track next to the station. There were several other tracks, the next one to the main track being distant approximately 10 feet. Glorietta is a small place. The grounds covered by the tracks were used by the public in approaching the depot. Plaintiff had hitched his horse, and approached the main track by a public way or crossing, with a view to crossing the main track, and then turning up in the direction of the depot, which was some distance east. When he got to the main track, the passenger train had arrived, and obstructed his crossing there, and, the train being vestibuled and closed, he could not cross over it. Under these circumstances he walked up along the track, between this and the next track in the direction of the depot, until the train began to move out, when he stopped, intending to cross when the train had passed. There had been a helper engine on this train, engaged in bringing it upgrade to the depot. This helper engine had detached, and backed down the track behind plaintiff while he was standing there facing the moving passenger train, and struck him. The evidence showed that plaintiff was not a trespasser, and appellant's counsel do not claim that he was. It was usual for people to take the course plaintiff did in approaching the depot under the same circumstances. Plaintiff says he did not know the helper engine was coming, and was not expecting it. There was ample evidence that it came along the track rapidly, without giving any signals. There is some testimony of a custom of the helper engine to back down after the passenger train was gone, and that plaintiff had known this for some years. It was also in evidence that the tracks were built for small engines, and that Mogul engines had been used for about a year prior to the time plaintiff was injured, and that they were larger, and extended over from the outer rails on each side about two feet. The testimony, on the other hand, clearly showed that there was sufficient space for a man to safely stand between moving trains on both tracks. There is no question as to the fact of appellant's negligence. The jury must have found that plaintiff was not guilty of contributory negligence.

Under the second assignment the substance of the proposition is that, the petition failing to show that there was not sufficient room between the track on which plaintiff stood and the adjacent track for plaintiff to have stood in safety, the special demurrer ought to have been sustained, for the reason that the petition showed plaintiff was prima facie guilty of contributory negligence. The petition alleged the circumstances surrounding the transaction at the time he was injured, and alleged that he was exercising due care. The fact that the space was wide enough to admit of trains passing each other on the two tracks without striking a person standing in the space between them might, at the most, indicate contributory negligence, so as to throw upon plaintiff the burden of showing the contrary. Even this effect was probably not due to it. Railway v. Collins, 24 Tex. Civ. App. 143, 57 S. W. 884. The fact was certainly not conclusive of the question. At all events, the facts alleged in the petition tended to negative contributory negligence, and made the issue as to whether or not, under existing conditions, plaintiff was in the exercise of reasonable care in occupying the position he did. Also the allegation that he was exercising due care at the time was sufficient of itself to raise such issue. It is undoubtedly true that plaintiff could, by having observed a certain degree of caution, have avoided any danger from an engine moving on the track behind him. But this was not the question. It was whether or not he observed the caution which an ordinarily prudent man would have observed under all the circumstances; and this issue was raised both by the pleading and the evidence, and was properly left to the jury. We disregard, in this connection, all evidence tending to show that the employés on the engine saw plaintiff in time to have avoided injuring him, as such issue does not seem to have been made nor submitted. Plaintiff was doing what was usual and customary for persons in that vicinity to do in approaching the depot across appellant's yards. He was standing off a safe distance from the moving passenger train, though further than he needed to have done, facing the train until it should have passed, in order to...