Ford v. Houston & T. C. R. Co.

• Decision Date: 15 January 1910
• Citation: 124 S.W. 715
• Parties: FORD v. HOUSTON & T. C. R. CO.
• Court: Texas Court of Appeals

124 S.W. 715

FORD v. HOUSTON & T. C. R. CO.

Court of Civil Appeals of Texas.

January 15, 1910.

Appeal from District Court, Limestone County; H. B. Daviss, Judge.

Action by J. M. Ford against the Houston & Texas Central Railroad Company. Defendant had judgment, and plaintiff appeals. Affirmed.

A. B. Rennolds, for appellant. Baker, Botts, Parker & Garwood, Williams & Bradley, and O. L. Stribling, for appellee.

TALBOT, J.

Appellant, Ford, sued the appellee to recover damages for personal injuries alleged to have been received by him through the negligence of appellee in permitting steam to escape from one of its engines left standing unattended on a side track in its yards at the town of Mexia near "a public way of travel on defendant's right of way," which frightened appellant's mules drawing a wagon in which he was riding, causing said mules to run away and throw appellant from the wagon and injure him. The defendant pleaded general and special demurrers, which were by the court overruled, a general denial, and contributory negligence. A jury was impaneled, the evidence introduced, and the attorney for the plaintiff made the opening argument, whereupon the court announced, in the presence and hearing of the jury, "that he did not believe that under the pleadings and proof there was liability in damages to plaintiff shown against defendant railroad company, and that the court would peremptorily instruct the jury to find for the defendant," and this the court would have done, as shown by bill of exceptions, but for the fact that counsel for plaintiff upon the court's announcement, as stated, made a motion that plaintiff be permitted to take a nonsuit, which motion was granted and the cause dismissed. The plaintiff excepted to the court's action in announcing that he would instruct a verdict for the defendant and in refusing to submit the issues of fact, as insisted upon by him, for the determination of the jury, and in due time filed a motion to reinstate his case. This motion was overruled, and from the ruling of the court the plaintiff appealed.

Appellee moves this court to dismiss the appellant's appeal and strike the case from the docket of the court, because, as claimed, this court is without jurisdiction to try and determine the appeal for the reason that the nonsuit taken by appellant in the district court was voluntary and not taken under such coercion as entitles him to an appeal from such judgment.

We think the action of the court in announcing that appellant had failed to show any liability on the part of appellee for the alleged injuries sustained by him, and that he would instruct a verdict for the appellee, was practically the same as if such direction had been given before appellant took a nonsuit; and, after such action of the court, it was not obligatory upon appellant, in order to avail himself of the right of appeal, to permit a verdict to go against him. We understand the rule to be in this state that when the plaintiff is surprised by a ruling of the court, which practically prevents a recovery by him, he is not compelled to proceed with the trial, but may take a nonsuit, and may then move to set aside the nonsuit and reinstate the case; and, if the action of the court necessitating such course be erroneous and the motion to reinstate is overruled, its judgment may be revised on appeal. If the ruling of the court is not erroneous, the motion to reinstate is addressed to the discretion of the court, and its refusal is not error. Huston v. Berry, 3 Tex. 235; Easterling v. Blythe, 7 Tex. 210, 56 Am. Dec. 45; Osborne v. Scott, 13 Tex. 59; Lockett v. Railway Co., 78 Tex. 211, 14 S. W. 564. We are of the opinion the court did not err in refusing to reinstate appellant's cause for the reason that the evidence was insufficient to authorize a finding by the jury that appellee was responsible for the accident resulting in the injuries of which appellant complains. The petition stated a good cause of action, and appellee's demurrers were therefore properly overruled, but the evidence fails to raise an issue of fact upon the ground of negligence alleged upon which a recovery is sought to be had. It is not claimed that an unusual quantity of steam escaped from the engine and caused the team to become frightened, but that the team became frightened at the noise made thereby. It appears that appellee's locomotive engine from which it is alleged the steam escaped, causing appellant's mules to take fright, was standing on one of its tracks in the railroad yards in the town of Mexia, not very far from a traveled way, which had been used by the people for many years, along the railroad right of way, but not near a public street or street crossing of said city; that the noise made by the escape of steam from said engine at the time appellant's mules became frightened and ran away was about as loud as is usually made by the escape of steam from an engine.

Appellant testified: "On the right-hand side of the road that I went down was a small building that was used for a hotel. Right south of that was the Rotan Grocery house. * * * As I was coming down that road, when I got about even with the Rotan Grocery house, the engine that was standing on the track there popped off steam. The engine made about the usual noise that engines make when they pop off steam. The engine that I was looking at was the one that popped off steam. I was not quite opposite the engine when it popped off steam. I do not know exactly how far this road that I traveled down was from the engine. It was about 60 or 80 feet. I have been going to Mexia for the last 20 years. I have been across the depot grounds frequently. When the steam popped off in that engine standing there, my team began to run. I could not tell you exactly the kind of noise that engine made. It was a loud noise, just about the usual noise an engine generally...