Caldwell v. Houston & T. C. Ry. Co.

• Decision Date: 04 February 1909
• Parties: CALDWELL et al. v. HOUSTON & T. C. RY. CO.
• Court: Texas Court of Appeals

117 S.W. 488

CALDWELL et al. v. HOUSTON & T. C. RY. CO.

Court of Civil Appeals of Texas.

February 4, 1909.

On Rehearing, March 11, 1909.

Appeal from District Court, Lee County; Ed. R. Suiks, Judge.

Action by Mrs. Tommie Caldwell and others against the Houston & Texas Central Railway Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Watson & Symmang and J. N. Story, for appellants. Baker, Botts, Parker & Garwood, W. B. Garrett, and W. O. Bowens, for appellee.

HODGES, J.

Mrs. Tommie Caldwell, as the surviving widow of George Caldwell and the next friend of her minor children, instituted this suit against the appellee to recover damages for the alleged negligent killing of her husband. It is alleged that Caldwell was at the time lying upon the track of the defendant company, that his perilous situation was discovered by the engineer and brakeman in charge of the train that ran over and killed him in sufficient time to enable them by the exercise of proper care to avoid the collision, but that they negligently failed to exercise this care. It is also alleged: That Caldwell was one of the appellee's section foremen, and that on this occasion he was on his way home, traveling along the appellee's track, where he had the right to walk; that the track at this point was habitually and customarily used by the public as a footpath, with the knowledge and consent of the railway company; that in thus using the path Caldwell was a licensee; that the trainmen were charged with the duty of keeping a lookout at that place for the presence of persons who might be so using the track; that while Caldwell was walking along said path he was stricken with a "providential illness and fell thereon from a providential cause; * * * that while he lay upon the track in that condition, unable to move, the defendant's train ran over and killed" him. Negligence is alleged as consisting of a failure on the part of the trainmen to keep a proper lookout to discover the presence of Caldwell upon the track, he being as to that place a licensee, and in failing to use ordinary care to discover the deceased upon the track after he had fallen thereon from "providential causes." From a verdict in favor of the defendant below, this appeal is prosecuted.

Caldwell was one of the appellee's section foremen and lived in or near the town of Giddings, up the track from the depot. On the night of the 22d day of July, 1907, after having spent some time in town, he started for his home. He was accompanied as far as the depot by a witness who testified in the case. The witness states that at that time deceased was considerably under the influence of whisky, so much so that he staggered as he walked. They separated about 11:30 o'clock. As Caldwell started up the track toward his home, witness asked him if he "could make it home," to which he says deceased answered that he thought he could. There is some conflict, however, as to whether Caldwell was in fact drunk on that occasion. At 12:50 o'clock on the same night, one of appellee's trains was due from the west, and it came in on time. It was this train which ran over and killed Caldwell. In order to show the circumstances under which the killing occurred, the appellants placed the engineer and brakeman in charge of that train on the stand, from whom the following details were obtained: Theirs was a mixed train, consisting of five freight cars, three passenger coaches, and one sleeper. They were due at Giddings at 12:50 that night and were coming in on time. When within a short distance of the station, and after having passed the whistling post they discovered an object about 250 or 300 feet in front of them on the track. Neither of them could tell what it was, but thought it was probably a bank of cinders, a calf, or a dog. They say they could not see plainly ahead by reason of the fact that the train was at that point passing around a curve, and the headlight shone to the left of the track. When within 75 or 80 feet of the object, the brakeman, who was at the time in the place usually occupied by the fireman, discovered that the object was a man, and immediately so informed the engineer. The latter says he applied his brakes and partially applied the reverse lever, but was unable to stop the train in time to prevent running over the man. The man proved to be Caldwell, who was at the time lying upon his back, across the track, with his feet over the south rail. After being struck, his body was dragged by the train 435 feet from where he was lying.

The court refused to charge upon any issue except that of discovered peril. In addition to the general charge on that subject, the following special charge was given at the instance of the appellee: "In this case the jury are instructed that in considering this case you are not authorized to consider whether or not the employés in charge of said train in the exercise of ordinary care could have discovered, or might have discovered, the deceased as a man lying upon the track; but the question submitted to you, and the only question for you to determine, is whether or not said employés in charge of said train in the exercise of such care actually discovered the deceased as a man lying on the track in time to stop the same to prevent striking him." We do not subscribe to the legal doctrine embodied in that charge. Neither do we think it is supported by the case of S. A. & A. P. Ry. Co. v. McMillan, 100 Tex. 562, 102 S. W. 103, decided by the Supreme Court of this state. The doctrine announced in that case falls little short of permitting a railway company to escape civil liability for killing a human being upon evidence sufficient to convict the employés in charge of the train in a criminal prosecution for negligent homicide. The charge given in this case would permit the employés in charge of the train, after having observed an object on the track in front of the engine, which might upon closer inspection prove to be a human being in a helpless condition, to deliberately turn their eyes away and carelessly destroy his life. We think it is exacting little enough of such employés to require that, under such circumstances, they exercise at least ordinary care to ascertain what the object is; and if by reason of a failure to exercise such a precaution human life is sacrificed, the company should be held liable for damages.

However, we do not think the case should be reversed because of the error discussed. If the proper verdict has been returned, and a correct judgment entered, the case will not be reversed merely because of an error which could not have affected the disposition which should have been made of it. G. & W. Ry. Co. v. City of Galveston, 91 Tex. 17, 39 S. W. 920, 36 L. R. A. 44; T. & P. Ry. Co. v. Purcell, 91 Tex. 585, 44 S. W. 1058. Under the evidence introduced by the appellants, no other verdict could have been rendered, for the reason that this evidence shows that, even if the engineer had used his best efforts from the time he discovered the object on the track, he could not have avoided the collision. He was plaintiffs' witness, and testified that his train was a mixed train and about 540 feet in length, and that such a train could not be stopped within less than its length. He further testified that he made every possible effort to stop the train after being notified that he was about to run over a man, and the evidence shows that the train ran about 550 feet before it came to a stop. From this we think the conclusion is irresistible that the train could not have been stopped within 300 feet, the...