Cardwell v. Gulf, B. & G. N. Ry. Co.

• Decision Date: 08 June 1905
• Citation: 88 S.W. 422
• Parties: CARDWELL v. GULF, B. & G. N. RY. CO. et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

88 S.W. 422

CARDWELL v. GULF, B. & G. N. RY. CO. et al.^*

Court of Civil Appeals of Texas.

June 8, 1905.

Appeal from District Court, San Augustine County; Tom C. Davis, Judge.

Action by Maggie Cardwell, individually and as next friend of her minor child, V. O. Cardwell, against the Gulf, Beaumont & Great Northern Railway Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

J. Felton Lane, W. T. Davis, and Makemson, Hudson & Lord, for appellant. J. W. Terry and F. J. & R. C. Duff, for appellees.

PLEASANTS, J.

This is a suit by appellant, Maggie Cardwell, for herself and as next friend of her minor child, V. O. Cardwell, to recover damages for the death of her husband, the father of said minor. The suit is against the Gulf, Beaumont & Great Northern Railway Company, the Gulf, Beaumont & Kansas City Railway Company, the Gulf, Colorado & Santa Fé Railway Company, and the Old Colony Contracting Company. The petition alleges, in substance, that the deceased, V. O. Cardwell, met his death on the 10th day of October, 1902, while in the employment of some or all of the defendants in the capacity of conductor of a railroad train owned and operated by some or all of the defendants, and plaintiff is informed and believes, and, so believing, charges, that the railroad and train in the operation of which the said V. O. Cardwell was killed was then and there owned and operated by the defendant Gulf, Colorado & Santa Fé Railway Company, and the said Cardwell's death was caused by the negligence of the employés of said defendant. It is then alleged that, if plaintiff is mistaken in the above allegation as to the ownership of said railroad and the responsibility for its proper operation, it was owned and operated by some one or all of the named defendants, and judgment is asked against the defendant or defendants found to be responsible for the death of said Cardwell. The allegations as to the circumstances under which Cardwell was killed are, in substance, that while engaged in the work of switching a train on defendant's road, and acting in the capacity of conductor, brakeman, and switchman, it became proper for him, in the discharge of his duties, to get upon the pilot of the engine which was drawing said train, and that while so riding upon the engine, or in attempting to step therefrom, he slipped and fell, and was caught and dragged by the engine for a distance of 50 feet, and his body was thereby so crushed and mangled as to then and there cause his death. The negligence alleged, and upon which the right of recovery is based, was the failure of the engineer and fireman to use proper care to stop the engine after they discovered that Cardwell had fallen therefrom, and, in the alternative, the failure of said employés to keep a proper lookout, and, as a consequence, their failure to discover Cardwell's peril in time to stop the engine before it struck him, and the failure of the defendant to have its train properly equipped with the appliances necessary to stop it suddenly in case of emergency. The amount of damages claimed in the petition is $40,000. The defendants answered by general denial, and by special pleas, which, among other defenses, charged that the deceased was guilty of contributory negligence in riding upon the pilot of the engine, and that he assumed the risk incident thereto. Upon the trial below, after hearing the evidence, the trial judge instructed the jury to find a verdict for the defendants; and, upon the return of such verdict, judgment was rendered in accordance therewith.

The evidence shows that the deceased, V. O. Cardwell, was killed on October 10, 1902, in the manner and under the circumstances alleged in the petition. The engine which ran over deceased was being operated by D. D. Barfield, engineer, and Frank Flores, fireman. Cardwell was conductor of the train, and it was being switched to allow a train that was meeting it to pass. He was performing the duties of switchman as well as conductor, and had gotten on and off the pilot of the engine several times, presumably for the purpose of placing the switch. As the two trains were passing each other, he was seen to slip or fall from his position on the engine, and was caught and killed in the manner stated in the petition. At the time he fell the train was moving at the rate of four or five miles an hour going up a slight grade. He fell just in front of the train, and his body was pushed along by the engine for a distance of 24 feet. The engine was stopped about 65 feet beyond the point at which he fell. It was equipped with proper appliances for stopping it, and these appliances were in good condition. There is...