Davidson v. Gulf, C. & S. F. Ry. Co.

• Court: Texas Court of Appeals
• Writing for the Court: Speer
• Citation: Davidson v. Gulf, C. & S. F. Ry. Co., 136 S.W.2d 923 (Tex. App. 1940)
• Decision Date: 12 January 1940
• Docket Number: No. 14003.,14003.
• Parties: DAVIDSON v. GULF, C. & S. F. RY. CO. et al.

136 S.W.2d 923

DAVIDSON v. GULF, C. & S. F. RY. CO. et al.

No. 14003.

Court of Civil Appeals of Texas. Fort Worth.

January 12, 1940.

Rehearing Denied February 23, 1940.

Error from District Court, Tarrant County; Frank P. Culver, Jr., Judge.

Action by W. E. Davidson against the Gulf, Colorado & Santa Fe Railway Company and another for injuries sustained by plaintiff when his foot was severed by wheels of a train. To review a judgment for defendants, plaintiff brings error.

Affirmed.

Rawlings & Sayers and Nelson Scurlock, all of Fort Worth, for appellant.

Terry, Cavin & Mills, of Galveston, and Wren & Jeffrey, of Fort Worth, for appellees.

SPEER, Justice.

Plaintiff, W. E. Davidson, sued Gulf, Colorado & Santa Fe Railway Company, which we shall refer to as the Railway Company, and the Fort Worth Union Passenger Station Company, which we shall call the Station Company, for damages occasioned by an injury sustained by him when his foot was severed by the wheels of the Railway Company's train.

It is unnecessary to state in detail the pleadings of the parties, since there is no issue made that they were insufficient upon which to base the testimony relied upon.

The acts of negligence charged to defendants as proximately causing plaintiff's injuries were substantially: (a) failure to have the premises where plaintiff was injured sufficiently lighted; (b) failure to keep a watchman at the point to warn the public of the latent dangers while using the space between the tracks for passage, especially while the Railway Company had the street crossing blocked; (c) failure to have an employee to cover the open box after it had been used for servicing the train; and (d) a failure to keep and maintain a safe means of ingress and egress, particularly for persons approaching the depot from the east. Sufficient allegations were made covering the damages claimed, including hospital and doctor's bills, as well also loss of time and diminished earning capacity.

Defendants' answers consisted of general and special demurrers, general denial and such special pleas as that adequate provisions were made for public entrance to the station from the Jones Street side; an exit was provided at the east side for passage to and from passenger trains; a passenger shed and platform 600 feet long was provided east of the station, that it was well lighted and suitable for uses intended. That all grounds east of the platform (where plaintiff was injured) were equipped for and only intended to be used by employees; the boxes for hose connections were located on the opposite side of trains while loading and unloading passengers; they were necessary for servicing trains; that no provisions were made or intended to be made for passage by the public to pass from 17th Street to the station over and across the premises attempted to be used by plaintiff at the time of the accident.

A jury trial was demanded, but at the conclusion of plaintiff's testimony the court sustained a motion by defendants for an instructed verdict, and upon that verdict judgment was entered, denying plaintiff a recovery. An appeal by writ of error was perfected.

Plaintiff bases his appeal upon two propositions, the first of which is in substance as follows: Since the evidence in this case shows that the Station Company, for a valuable consideration, permitted the Yellow Cab Company to operate a service to and from the station, and the plaintiff, while going to the station to obtain that service, using a part of the grounds which was constantly used by pedestrians, with the consent and acquiescence of defendants, he must be considered as an invitee; the defendants owed plaintiff the duty to maintain their premises in a reasonably safe condition, and were obligated to give warnings of latent and concealed perils.

The second proposition urged for a reversal is based upon the same state of facts set out in the first proposition, and concludes with this language: "He, the plaintiff, if not an invitee, was not a trespasser, but a mere licensee; so that plaintiff would be entitled to recover damages for the injury sustained by him, caused by the active negligence on the part of the employees of the railway company in leaving the lid off the concrete water box, which created a new and dangerous condition along the way used by plaintiff, which was the usual way of approaching the station from the east on Seventeenth Street, when the crossing is blocked."

The instructed verdict by the court and the propositions urged here will necessitate a somewhat lengthy statement of the evidence.

The statement of facts definitely describes the grounds at and around the place of the accident. The station in the City of Fort Worth is located on the east side of Jones Street, having its entrance facing that street; it is operated by the Station Company. The passenger trains of several companies, including the defendant Railway Company, stop there for loading and unloading passengers. Jones Street, upon which the station fronts, runs north and south; all railway tracks lie east of the street and, in the main, parallel it. The area covering the space of about four city blocks north and south, and extending east some distance, is known as the Railway Company's yards, where it maintains many tracks used in connection with its freight and passenger service. These yards and station grounds are bounded on the south by 17th Street and on the north by 9th Street, each of which runs east and west, extending from toward the business district, and crosses Jones Street. West of Jones Street are also 16th, 15th and 14th Streets, extending at right angles from toward the business district, but each terminates at Jones Street. The Station building has a door on its east side, through which passengers go to and from the trains. There are two large sheds near the station one of which is about 350 feet long and extends from the south end of the station toward 17th Street; this shed is referred to in the record as train shed number one, seems to be used almost exclusively for loading and unloading express and is not important insofar as this appeal is concerned. Shed number two is east of number one and extends from a point 150 feet north of the station building to a point south, even with shed number one, and in all is approximately 600 feet long. Number two is used for loading and unloading passengers. The space under the shed is referred to as the passenger platform and is paved with bricks and extends to within about eighteen inches of the track on either side; the pavement or platform is approximately even with the sides of passenger coaches while standing by its side. Track number one lies adjacent to the east side of the passenger shed and platform. When passenger trains come into the station, only the doors of the coaches on the side next to the platform are opened to permit passengers to enter or leave the coaches. The platform is well lighted from overhead. This shed's south end is approximately 150 feet north of 17th Street, which is the south boundary of the station grounds and railroad yards. There are many tracks east of passenger track number one, the nearest one being about six feet away and parallels number one. All tracks east of number one are used only for occupancy by rolling stock, switching purposes and such other uses necessary for handling and servicing box cars and passenger equipment when not in use. All of the grounds extending from 17th Street north are covered with chat or fine gravel. Between passenger track number one and the track immediately east of it the railway company maintains five or six concrete boxes with iron lids on them, the tops of which are flush with the ground or gravel. Inside of these boxes are water, steam and air connections for attachment of hose with which to service passenger trains while standing on passenger track number one. The steam box connection is about midway between 17th Street and the south end of the passenger shed. The other boxes are approximately two coach lengths or 140 feet apart and extend north to the end of the passenger shed.

Plaintiff was riding in the car of another man, going west on 17th Street just south of the railroad yards, at about 11 o'clock on the night of August 24th, 1937. He observed that a passenger train had the crossing blocked, and at a point approximately 100 feet from the track, got out of the car. The driver of the car observed that a tire was almost flat and turned around and went back east to find a filling station to service his tire. Plaintiff walked west on 17th Street to where the train stood on passenger track No. 1, next to the east side of the passenger shed. He had started to the station to procure a taxi cab, if any were there, to take him to his home, and if no cabs were there he expected to walk on up town. He walked north between track No. 1 and the first track east. He had previously visited the station and knew the entrance was on Jones Street, and that if there were any cabs at the station they would be on Jones Street.

There were no lights in the vicinity of where he left 17th Street, but he could see lights at the passenger shed; some light filtered through car windows and from under the passenger train beside which he was walking. He passed the steam box and observed escaping steam. At another place he saw wet places on the ground, although it had not been raining. The train started moving south, the direction in which it was headed. He saw a headlight from an engine on the track to his right and walked closer to the moving train on his left. He stepped into one of those open boxes and fell toward the moving passenger train, was struck on...