Central Texas & N. W. Ry. Co. v. Gibson

• Citation: 79 S.W. 351
• Parties: CENTRAL TEXAS & N. W. RY. CO. v. GIBSON.
• Decision Date: 03 March 1904
• Court: Texas Court of Appeals

79 S.W. 351

CENTRAL TEXAS & N. W. RY. CO. v. GIBSON.

Court of Civil Appeals of Texas.

March 3, 1904.

Appeal from District Court, Ellis County; J. E. Dillard, Judge.

Action by C. W. Gibson against the Central Texas & Northwestern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed on condition that plaintiff remit $750 of the verdict secured for him.

Baker, Botts, Baker & Lovett and Frost & Neblett, for appellant. Templeton & Harding and G. C. Groce, for appellee.

FLY, J.

Appellee was injured in a collision between a car, to which no engine was attached, and his vehicle, on a street crossing in the city of Waxahachie, and sued appellant to recover damages alleged to have been sustained to his surry, his horse, and his person. He recovered the sum of $1,225.

The collision occurred through the negligence of appellant. The car had been shunted by an engine down the track to a street crossing, and ran into and crushed the vehicle of appellee, and damaged one of his horses, and injured his person. The car was running across a street, with no one in charge, according to appellee's witnesses, in violation of an ordinance of the city of Waxahachie, and no signal or warning of its approach was given. Appellant's witnesses testified that a brakeman was in charge of the car, and, if so, the facts justify the conclusion that he discovered the peril of appellee, and by proper effort could have prevented the collision. The brakeman made no effort to warn appellee of the approach of the car. The facts are discussed in connection with the assignments of error.

The court charged the jury that if they believed that the crossing on which the injuries occurred was peculiarly dangerous, and "that a person of ordinary caution and prudence would, under all the circumstances, have kept a flagman at such crossing to prevent injury there to travelers passing over the same," and if the jury believed that appellant's failure to keep a flagman at the crossing was negligence, and the injury resulted from such failure, they should find for appellee. The charge is complained of in the first assignment of error, the grounds of complaint, as set out in two propositions, being, first, that such charge "is reversible error"; and, second, that, "in the absence of affirmative proof that the crossing in question was exceptionally dangerous to persons attempting to pass over it," it was error to give the charge. It is clear that the first proposition is too general to merit consideration, and the second, we think, is based upon a false premise, as appears from our conclusions of fact. We think this matter is settled adversely to appellant in the case of Railway v. Magee, 92 Tex. 616, 50 S. W. 1013, where a similar charge is upheld, where similar objections were urged to it to those insisted on in this case. The court said: "The facts of this case show that the crossing at which the injury occurred was in a populous city, on one of the principal streets, and at a point so near to a bridge crossing the bayou as to render it more than usually hazardous. The evidence justified the court in submitting to the jury the question whether the circumstances were such as to require from the railroad the precaution to provide some person to notify travelers of the approach of trains. The charge is in harmony with the general principles which govern the liability and prescribe the duties of railroad companies." As said in that case, such a charge would not be applicable unless it appeared that the crossing where the injury was inflicted was extrahazardous, and this is true because the law does not require railroad companies to keep flagmen at all railroad crossings, and liability could arise from the failure to keep a flagman at a crossing because of the circumstances making it an exception to the ordinary crossing. We think the evidence was sufficient to show that the crossing was one exceptionally dangerous.

The city of Waxahachie has about 6,000 inhabitants, and the crossing under consideration was in a thickly settled portion of it, and on one of its most frequented and most populous streets, about 1,000 feet from the public square. On the side from which appellee approached the crossing, there are trees obstructing the view of the railroad track on the side of the street from which the car approached until a point 20 or 25 feet from the track is reached; and on the opposite side of the crossing, the same side of the street, the view of the track is obstructed until within 30 feet of the track. A view of the track on the other side of the street was also obstructed until a point within 25 feet of the track is reached. E. P. Littlepage a witness for appellant, stated that he had been working near the crossing for about eight months, and that, when he heard the sounds of voices, it impressed him that something exciting was about to take place. "I had seen some narrow escapes at that crossing before, and knew pretty well what it was." He afterwards stated that he had seen three or four such escapes. The argument that juries would be inclined to find that a flagman should be placed at any crossing where an accident occurred, whether it was shown to be dangerous or not, if at all justified by observation and experience, could be used with equal cogency and effect in regard to any question of fact, and is an arraignment of the jury system, rather than an attack upon the propriety of the charge. There is no cogency...