Barron v. Houston E. & W. T. Ry. Co.

• Decision Date: 21 March 1923
• Docket Number: (No. 346-3727.)
• Citation: 249 S.W. 825
• Parties: BARRON v. HOUSTON E. & W. T. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

249 S.W. 825

BARRON v. HOUSTON E. & W. T. RY. CO.^*

(No. 346-3727.)

Commission of Appeals of Texas, Section B.

March 21, 1923.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by I. D. Barron against the Houston East & West Texas Railway Company. Judgment for plaintiff was reversed by the Court of Civil Appeals (235 S. W. 335), and plaintiff brings error. Reversed and remanded to the trial court in accordance with the recommendation of Commission of Appeals.

Woods, King & John, of Houston, and John F. Perritte, of Nacogdoches, for plaintiff in error.

Garrison, Pollard & Berry, of Houston, and Russell & Seale, of Nacogdoches, for defendant in error.

POWELL, J.

This is an action in damages filed in the district court of Nacogdoches county by I. D. Barron against the defendant in error to recover from said company for injuries he sustained in the yards of the company at Nacogdoches on March 31, 1920. Plaintiff in error was struck by one of the company's box cars during the switching operation of the train, and his left leg so injured that it became necessary to amputate it several inches below the knee. Upon a trial before a jury the trial court awarded Barron a judgment against defendant in error for $10,538.60. Upon appeal to the Court of Civil Appeals at Beaumont, that court reversed the judgment of the district court held the plaintiff in error guilty of contributory negligence as a matter of law, and rendered judgment for the railway company. Justice Walker dissented upon the holding with reference to contributory negligence of Barron. For both the majority and minority opinions of the Court of Civil Appeals, see, 235 S. W. 335.

Counsel for Barron, upon proper application therefor, were granted a writ of error by the Supreme Court.

The opinions of the Court of Civil Appeals cover some 18 pages in the Southwestern Reporter, and they state the case fully from every standpoint, including the pleadings, findings of the jury, and facts generally. We do not think it necessary to repeat this statement here in full, but only such of the facts and contentions as have bearing upon the questions we shall hereafter discuss.

In the first place, the jury found the railway company guilty of negligence in several particulars, each of which it found proximately caused Barron's injuries. The Court of Civil Appeals concedes that the record sustains at least some of these allegations of negligence on the part of the railway company. Therefore they would not disturb the trial court's judgment upon the ground that the company was not shown to be actionably negligent. But a majority of the Court of Civil Appeals concludes, contrary to the specific findings of the jury, that Barron was guilty of contributory negligence precluding recovery; in other words, that this record shows, as a matter of law, that Barron was guilty of contributory negligence and that there was no issue of fact for the jury in that connection. We shall first consider this holding by the majority of the Court of Civil Appeals.

When an appellate court undertakes to overturn the verdict of a jury, it must consider the evidence in the record most favorably for the plaintiff from the position of the injured party just before and at the time of the accident, rejecting all evidence favorable to the defendant. The jury had a right to so consider the evidence and the reviewing court must so consider it. This very holding, practically in those very words, was made by our Supreme Court in the case of Kirksey v. Traction Co., 110 Tex. 190, 217 S. W. 139.

Is there any evidence in this record upon which the jury would have been justified in finding, as it did, that Barron was not guilty of contributory negligence in going across the track at the time of the accident as he did? We think there is. For instance, there is ample evidence in the record showing these facts:

Barron, for almost one year prior to the accident, had been employed at the depot office of the American Railway Express Company in Nacogdoches. The main line of the defendant in error runs almost north and south through the town of Nacogdoches; the express office where Barron worked being just to the east of the main line and north of the passenger depot. The switching yards of the railway company were largely south of the passenger depot, and there were several side tracks branching off from the main line on either side, although most of the side tracks were west of the main line.

Barron lived south of the yards and near the railway right of way. It was his custom to go through the yards almost every day in going to his place of business, generally following a cinder path just east of the main line track. Not only so, but he had worked for 8 or 10 years for others whose business was near these yards. He was familiar with such yards and the switching operations which usually took place there.

He had also for some three months been taking to the company's car repairer, at his shed in these south yards, a bottle of milk each morning. The car repairer had driven a nail on his shed where the milk could be hung.

On the morning of the accident Barron left home in the usual way and on the usual route through the yards to reach his office. On his way he saw a freight train enter the yards from the south. Its engine cut loose and went on the first side track, known as the "house track," east of the main line, and headed into about 14 box cars. The engine then pulled these cars off the house track with a view of switching them, and it was customary for this train to kick some cars on one side track and some on another. Barron knew all of these customs, except he said he did not know that the engine, with one movement, sent off a bunch of cars which were later cut into two groups, one group being spotted on one side track and one on another. In other words, Barron denied any knowledge of those so-called double flying or kicking switching operations. There is evidence in the record tending to show that this accident resulted from one of these double kicking operations.

As stated, Barron knew this train was in the yards to his south as he passed on. In fact, he spoke to the engineer as he passed him. Barron went on north and reached the point where the house track branches from the main line. At about that point, and while east of this house track, he turned west, crossing over this house track. As he did this, he looked to see if he could safely do so. He found that the train was working off on the first side track west of the main line and saw box cars going north on that track west of the main line. He was then in the cinder path which goes north between the main line and house track. At that time he decided, as he walked on north, that he would cross this house track and go east to the car repairer's shed and tell him his father would bring the milk later in the day. As he walked north down this cinder path, he kept his eyes on these cars going down the side track west of the main line. Then, at a point about 90 or 100 feet north of the place where he had first crossed over this house track, he turned east to again cross this same track. Just as he was well on the track, he was struck and knocked down by a string of two box cars which this freight train had kicked onto the house track and which were rolling down thereon at a slow rate of speed.

It is conceded by all the judges of the Court of Civil Appeals, and by counsel for Barron, that, as the latter stepped on the track at the time of the accident, he exercised no care to see if any cars were approaching from the south on the track he was entering to cross.

Did the law require Barron, under the circumstances then present, to see, just as he entered upon the track at the time of the accident, that there were no cars approaching him on that track? As we read the decisions of our Supreme Court and other appellate courts, we think not. We find no decision which so holds. Certainly we have no such statute in Texas.

The more recent decisions relied upon by the railway company are Railway Co. v. Edwards, 100 Tex. 22, 93 S. W. 106, and Railway Co. v. Price (Tex. Com. App.) 240 S. W. 525.

The Edwards Case is sound as applied to the facts there before the court. Judge Williams announces the following general rules:

"The law is well settled that a traveler approaching a railroad crossing must exercise ordinary prudence in going upon the track to see that he may do so with safety. He cannot excuse the absence of all care by showing that those in charge of a train have also been guilty of negligence. This is the precise attitude of the plaintiff, when he claims that he was not bound to look out for himself until the statutory signals were given. His claim cannot be admitted without denying the rule which exacted the duty of due care on his part, a duty as binding on him as was the duty of giving signals binding on the defendant. The case is easily distinguished from those in which this court has held that, under the facts thereof, it would have been improper for the courts to have instructed that it was the duty of the travelers to do any particular thing as a measure of due care, such as to look and listen; it being the function of the jury to say what precautions were called for by the particular situation. Those cases presented issues for the jury to determine as to whether or not the care taken was sufficient, and not bare facts, like those in this case, establishing that no care whatever was taken and offering no excuse for its absence except a reliance on the other party."

It will be observed that Judge Williams does not say at what point in the approach to a crossing a party must exercise care to discover a passing train. He does not say one must look for the train 10 feet before entering the track rather than 50 or 100 feet. Obviously this question would depend on the circumstances of each particular case, and would...