Fort Worth & D. C. Ry. Co. v. Bell
Decision Date | 02 February 1929 |
Docket Number | (No. 12048.) |
Citation | 14 S.W.2d 856 |
Parties | FORT WORTH & D. C. RY. CO. v. BELL. |
Court | Texas Court of Appeals |
Appeal from District Court, Montague County; Vincent Stine, Judge.
Action by Grady B. Bell against the Fort Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.
Thompson & Barwise, of Fort Worth, Donald & Donald, of Bowie, and F. B. Walker, of Fort Worth, for appellant.
Thompson, Knight, Baker & Harris, of Dallas, and T. H. Yarbrough, of Nocona, for appellee.
On the night of February 8, 1926, in the city of Bowie, Grady B. Bell attempted to pass between two box cars of a freight train operated by the Fort Worth & Denver City Railway Company, and while so doing he fell, and one of his arms was so badly crushed under the wheels of the train that it had to be amputated just below the elbow.
He instituted this suit against the railway company for damages for that injury, and this appeal has been prosecuted by the defendant company from a judgment in his favor in the sum of $10,000.
The case was tried before a jury, to whom was submitted special issues. The issues submitted, with the findings of the jury thereon, were, in substance, as follows: (1) The accident happened at a public street crossing in the city of Bowie just south of defendant's depot. (2) Immediately prior to the accident and prior to the time the train was set in motion, the defendant company willfully obstructed the public street crossing where the accident occurred for a length of time in excess of five minutes; and its act in so doing was the proximate cause of plaintiff's injury. (3) Defendant's employés were "negligent in the matter of time that its train obstructed" the public street crossing in controversy immediately prior to the accident; and such negligence was the proximate cause of plaintiff's injury. (4) The defendant was "negligent in the matter of giving adequate warning and notice by the blowing of the whistle or the ringing of the bell that the train was going to move forward," which negligence was the proximate cause of plaintiff's injury. (5) The defendant was not guilty of negligence in failing to have a watchman or flagman at the crossing. (6) The plaintiff was not guilty of negligence, proximately contributing to his injury, in attempting to pass between two of defendant's freight cars at the time and place and in the manner he attempted to pass between the same on the occasion of his injury. (7) Plaintiff made no inquiry of the crew in charge of the train as to whether it would be safe for him to pass between the cars; but his failure to make such inquiry was not a failure to exercise ordinary care for his safety. (8) As a result of his injury, plaintiff sustained damages in the sum of $10,000.
The issues determined by the jury were duly presented in the pleadings of the parties.
Under appropriate assignments of error, it is insisted by appellant that the evidence introduced showed conclusively, as a matter of law, that plaintiff was guilty of negligence in attempting to cross the railway track, which was the sole cause, or at least a proximately contributing cause of his injury, by passing between two box cars connected together and constituting parts of a connected freight train attached to a live engine which, at the time, was in the act of starting on its journey.
The record shows without dispute that on the night of the accident plaintiff had gone to Fort Worth on a passenger train, and alighted therefrom at defendant's depot in the town of Bowie shortly after 9 o'clock at night. After his arrival he went to a garage and got his auto, and went to the home of a Mr. Sprowles to see him on a matter of business, after which he proceeded on his way to his home. At that time defendant's freight train was on a siding track, having come from Amarillo, and was headed south towards Fort Worth. That siding divides the business section of the city of Bowie from the residence section, and it extends in a northerly and southerly direction; the business district being on the east side of the track, and the residence section, where plaintiff intended to go, being on the west side. There are four public street crossings on this siding, all within the boundaries of the city of Bowie; beginning from the north, they are designated as the stock pen crossing, the Smokey or Smythe street crossing, the depot crossing, and the cotton yard crossing.
We quote the following from plaintiff's testimony, which is copied in his brief to refute appellant's contention that, as a matter of law, he was guilty of negligence proximately contributing to his injury:
Some of the testimony quoted above is also copied in appellant's brief, and in addition thereto the following is set out in its brief as supporting the assignment now under discussion:
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