Davis v. Hill

• Decision Date: 26 March 1925
• Docket Number: (No. 197.)
• Citation: 272 S.W. 291
• Parties: DAVIS, Agent, v. HILL et al.
• Court: Texas Court of Appeals

272 S.W. 291

DAVIS, Agent, v. HILL et al.

(No. 197.)

Court of Civil Appeals of Texas. Waco.

March 26, 1925.

Appeal from District Court, McLennan County; James P. Alexander, Judge.

Action by Mrs. Alda Hill and others against James C. Davis, Agent. Judgment for named plaintiff, and defendant appeals. Reversed and remanded as to named plaintiff.

C. L. Barrow and Terry, Gavin & Mills, all of Galveston, and Nat Harris, of Waco, for appellant.

J. A. Kibler and Tom Hamilton, both of Waco, for appellees.

Statement.

STANFORD, J.

This suit was filed August 20, 1919, by Mrs. Alda Hill against Walker D. Hines, Director General, and the Gulf, Colorado & Santa Fé Railway Company, for the recovery of damages resulting from the alleged negligence of the Director General while engaged in operating the Gulf, Colorado & Santa Fé Railway Company, in causing the death of her husband, G. E. Hill. On June 15, 1920, appellee filed her amended petition, in which she prosecuted the suit for herself and for the use and benefit of J. D. Hill and Mrs. M. E. Hill father and mother of G. E. Hill, deceased. In the meantime, Payne, Agent, was substituted in lieu of Walker D. Hines, and the Gulf, Colorado & Santa Fé Railway Company was dismissed from the case. The first three trials resulted in hung juries. The fourth trial resulted in a judgment for Alda Hill for $12,500 and $500 in favor of the father and mother. Appeal was taken to the Court of Civil Appeals, Third District, and said cause reversed and remanded for another trial, Payne v. Hill (Tex. Civ. App.) 242 S. W. 302. James C. Davis, Agent, was substituted for Payne. The trial court, when the case was called again for trial, sustained a plea in abatement, from which action appellee prosecuted an appeal to this court, and the action of the trial court in sustaining said plea in abatement was reversed and the cause remanded for another trial. (Tex. Civ. App.) 257 S. W. 340. Upon the last trial the case was submitted to the jury upon special issues, which special issues and the answers of the jury are as follows:

"Special Issue No. 1. Was the deceased, G. E. Hill, injured by being struck by one of the defendant's cars at the place where Schaffer street intersects defendant's railway track?" Answer: "Yes."

"If you answer the foregoing question, `No,' you need not answer any other issue submitted to you; but if you answer it, `Yes,' then you will answer the following issues:

"Special Issue No. 2. Did the agents, servants, and employees of the defendants suddenly start and move a string of cars over the public crossing of Schaffer street, and against the deceased, G. E. Hill, on the occasion in question without giving any alarm with the bell or whistle of the engine moving said cars, if any?" Answer: "Yes."

"If you answer the foregoing question, `No,' you need not answer special issues Nos. 3 and 4; but if you answer it, `Yes,' then you will answer the following issue:

"Special Issue No. 3. Were such acts and omissions, if any, negligence on the part of the agents, servants, and employees of the defendant?" Answer: "Yes."

"If you answer the foregoing special issue, `No,' you need not answer the following issue; but if you answer it, `Yes,' then you will answer No. 4.

"Special Issue No. 4. Was such negligence, if any, the proximate cause of the injuries and death of the plaintiff's husband, G. E. Hill?" Answer: "Yes."

"Special Issue No. 5. Did the agents, servants, and employees of the defendant suddenly start and move a string of cars over the public crossing of Schaffer street, and against the deceased, G. E. Hill, on the occasion in question, without having any brakeman on said crossing, or on said string of cars, to warn persons using said public crossing of danger prior to moving said string of cars over said crossing, if they did so move said string of cars?" Answer: "Yes."

"If you answer the foregoing question, `No,' you need not answer special issues Nos. 6 and 7; but if you answer it, `Yes,' then you will answer No. 6.

"Special Issue No. 6. Were such acts and omissions, if any, negligence on the part of the agents, servants, and employees of the defendant?" Answer: "Yes."

"If you have answered the above special issue, `No,' then you need not answer the next special issue; but if you have answered it, `Yes,' then you will answer the following issue:

"Special Issue No. 7. Was such negligence, if any, the proximate cause of the injuries to and death of plaintiff's husband?" Answer: "Yes."

"Special Issue No. 8. At the time plaintiff's husband was injured, was he a trespasser down in the yards of the defendant, among its tracks and away from any public thoroughfare, street, or passageway?" Answer: "No."

"Special Issue No. 9. At the time plaintiff's husband was injured, was he lying down under one of the defendant's cars, among its tracks and trains, away from a public thoroughfare, street, or passageway over its tracks?" Answer: "No."

"Special Issue No. 10. What amount of money, if paid now, will reasonably compensate the plaintiff for the pecuniary loss, if any, she has sustained by reason of the death of her husband?

"In estimating such amount, if any, you may take into consideration his probable earnings from the date of his death to the present time, and in the future, and the pecuniary value, if any, of his counsel, protection, and service to her, if any, had he lived; but you cannot take into consideration any mental distress, or the loss of his society, by reason of his death." Answer: "$6,500.00."

The trial court entered judgment against J. D. Hill and M. E. Hill, and for the appellee, Mrs. Alda Hill, for $6,500. Other facts will be stated in connection with the assignments discussed.

Opinion.

Under his first assignment, appellant contends that where a cause has been reversed and remanded by the appellate court because of the insufficiency of the evidence, and where the evidence on the retrial of the cause is, in all material points, the same as on the former trial, the action of the appellate court in reversing and remanding is binding on the trial court; and by several other assignments contends that the trial court should have peremptorily instructed a verdict for the defendant, and that the trial court erred in submitting each one of the issues submitted in this cause, on the ground that the evidence was not sufficient to authorize same. Other assignments contend that where the verdict of the jury is against the manifest weight and great preponderance of the evidence, it becomes the duty of the appellate court to reverse the judgment based on such evidence.

At Cleburne the main line of the Gulf, Colorado & Santa Fé Railway Company runs nearly north and south. The passenger depot is between Henderson and Chambers streets, running east and west, crossing the tracks of said railway. Its freight depot is a little less than a block south of the south end of the passenger depot, and its freight platform extends on south of its freight depot to very nearly Schaffer street. Schaffer street runs east and west, crossing the tracks of said railway and also the tracks of the Trinity & Brazos Valley, and is the only street crossing said tracks south of Chambers street. About three blocks south of Schaffer street there is a switch track leading off from the main line of the Gulf, Colorado & Santa Fé Railway track, extending in a northwest direction, crossing the tracks of the Trinity & Brazos Valley Railway, which is west, near to and parallel with the tracks of the Gulf, Colorado & Santa Fé Railway Company. From where this spur track crosses the tracks of the Trinity & Brazos Valley Railway Company, it is about 350 feet long. There are three transfer tracks along the east side of the Santa Fé freight depot and platform, which also cross Schaffer street. Also, the tracks of the Trinity & Brazos Valley cross Schaffer street, running just west of the Santa Fé depot.

G. E. Hill, husband of appellee, was, on August 7, 1919, run over by some box cars of the Gulf, Colorado & Santa Fé Railway Company, and so badly injured that he died two days later. There were two theories about where he was run over; appellee contending he was knocked down and run over on the Schaffer street crossing, and the appellant contending he had gone about two blocks south of Schaffer street, across the tracks to the west side, and had lain down under some box cars on what is known as the new city spur track and gone to sleep. Appellant's amended answer, raising the contention that deceased was not hurt on the Schaffer street crossing, but was hurt on said spur track, was not filed until April 5, 1920.

R. R. King testified by deposition taken on September 12, 1919, that he lived at Wortham; that he and Hill were brothers-in-law; that he and Hill had come to Cleburne from Fort Worth over the interurban on their way to Temple, and arriving about 1 o'clock at Cleburne. After they had dinner they went to the Santa Fé depot to see when they could get a train for Temple. After waiting awhile in the depot, Hill said he knew some people across the track, west and beyond the freight depot, and so they walked down to the freight depot for the purpose of locating the people Hill knew. At the lower end of the freight depot, King told Hill he was tired and would wait there for him. That Hill walked on, going right to the dirt road crossing the railroad track, and was crossing the track at the end of some box cars on the track with the end of said cars standing right next to the street, and when the switch engine bumped into the cars he looked around and the drawhead on the cars hit Hill on the side and knocked him down. That he was right in the street, and where the sidewalk would have been had there been one. Hill was about three feet from the end of the cars and in the street and right on the railroad track where it crosses the street. When the cars pulled off of him, he got up and ran about...