Freeman v. Terry

• Decision Date: 17 January 1912
• Parties: FREEMAN v. TERRY.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

144 S.W. 1016

FREEMAN v. TERRY.^†

Court of Civil Appeals of Texas. San Antonio.

January 17, 1912.

Rehearing Denied February 28, 1912.

Appeal from District Court, Frio County; J. F. Mullally, Judge.

Action by William Terry against T. J. Freeman, receiver. From a judgment for plaintiff, defendant appeals. Affirmed.

Jno. M. King, Hicks & Hicks, F. C. Davis, and B. W. Teagarden, for appellant. R. W. Hudson, J. T. Bivens, Magus Smith, H. C. Carter, and Perry J. Lewis, for appellee.

JAMES, C. J.

The action is by William Terry for damages for injury to his right foot, which was caught by the drawheads or coupling apparatus of one of defendant's trains, while plaintiff was in the act of crossing over between the cars.

The negligence of defendant, alleged as the cause of the injury, was, in substance, that the train in question was a long freight train which had stopped at the station of the town of Dilley, and for several hours stood there, blocking several of the public streets and thoroughfares of the town. That while the train so obstructed said public crossings many persons and citizens of the town going from one part of the town to the other were obliged to and did cross over and between or under the cars, and defendant's servants knew, or by the exercise of ordinary care would have known, the people were so crossing the train, and it was the duty of said employés not to move the cars without giving notice or warning of their intention to move them; and, as said cars were standing across two of the public and most used streets of the town, it was the duty of said employés to exercise reasonable care to look out at said crossings and to exercise reasonable care to see and know that said crossings were clear of persons attempting to cross before moving the cars. That at the time said cars were moved, whereby plaintiff's injury was caused, they were moved without any notice or warning whatever, and plaintiff had no knowledge or notice that the cars were about to be moved, and defendant's employés in charge of and operating the train negligently failed to keep or maintain a reasonable lookout at said place, or to exercise ordinary care to see that said crossings were clear, and that there were no persons engaged in attempting to cross over between the cars at said place, but suddenly put the same in motion without having given any signal or warning, and without having kept or maintained a reasonable lookout at such places, and without having exercised reasonable care to see that these crossings were clear of persons attempting to cross, and the said several acts of negligence directly contributed to cause plaintiff's injury.

Defendant demurred, and answered by general denial, and that at the time defendant was loading cattle, and, in order to do so, it was necessary to place the cattle cars composing the train at the cattle chute successively, which was done in the usual manner by placing the door of a car at the door or gate of the chute, loading the car, and then moving the train up the distance of another car; that, in order to do this, it was necessary for the train to block the particular crossing at the time in question; that while the train was standing there defendant was ready to cut the cars, upon request, to allow any one to pass, and did so several times during the time the train was standing there, and any one could, and many persons did, with the knowledge of said employés, pass around either end of the train, without requesting or waiting for the train to be opened for them; that if the train was blocking the crossing plaintiff could have safely gone around either end of the train, but instead, and without requesting the train to be cut, and without waiting to see whether it would clear the crossing, he leaped up between the cars in the dark, and placed his foot upon the drawheads just as the train was moved; that said employés had no knowledge at the time of the presence of plaintiff at the place, nor that he was attempting to climb between the cars; and that his conduct was negligence, which was the proximate cause of his injury. Plaintiff obtained a verdict for $7,500.

The first assignment of error alleges that the court erred in denying defendant's motion to direct a verdict for defendant after plaintiff had introduced his evidence; appellant contending by its propositions that the evidence showed plaintiff was guilty of contributory negligence.

The testimony disclosed the following facts: Defendant's employés were engaged in handling and loading a long stock train of 19 stock cars and several other cars at the station of Dilley. The track upon which the train stood ran practically north and south through the town, dividing it into east and west portions. South of the depot and the stock pen, the railroad crossed Miller street, the principally traveled street or crossing from one side of the town to the other. To the north was another parallel street, also crossed. From some time in the afternoon, about 3:30 o'clock, until after dark, this work of loading the train was in progress, and these streets blocked most, if not all, of the time. The engine was to the north, and when one car was loaded the train would be pushed back south until another car was at the pen to be bedded and loaded, and so on during the afternoon. The plaintiff, a doctor, had occasion to go from the east side of the town to the west side, between 6 and 7 o'clock, to see a patient. He came to the crossing on Miller street, which he found obstructed by the train. There was nobody on that side, and everybody was on the opposite side, up about where the stock pen was. He testified that he stood and waited a while to see if there was any occasion to move the train at that time, and hearing the men whooping and "hollering" down at the pen, and knowing that they were loading cattle, he passed over between two cars, and while he was doing so the cars moved forward and backward and jammed together, and his foot was caught and injured. He stated that, before attempting to cross over, he stood there "two or three minutes — a minute or so" — and looked up the track toward the engine and saw it up beyond the pen, and looked the other way and there was nobody there, and he heard no signals at all.

The witness Finch testified that when he went to his supper he crossed at this place by crawling under the train, and after supper came back and crawled through again, and he met plaintiff about 30 steps from the crossing, on the east side of the track, on Miller street, after he had crossed himself, and that he did not hear the bell ring or whistle blow after he met plaintiff.

Another witness, Lawrence, testified that he crossed between the cars over the couplings between the stock pens and the Miller street crossing about 6 o'clock, going from the east part of the town to the west part, and afterwards recrossed at the same place in the same way about 7 o'clock; that before he did so he took occasion to notice if there were any signals given, and heard the noise down at the pen, and heard they were running cattle into the cars, and went over.

There was testimony that other adult people crossed the train on Miller street by going over or under the cars during the time the streets were obstructed by these cars. We need not refer to school children who did so. There was testimony that persons using Miller street, to avoid going across the train, would have to go some distance in either direction to go around the train, and the walk was a hard one.

The motion to instruct for defendant upon the testimony as it was when plaintiff rested his case necessarily involved the claim that plaintiff had shown no negligence of defendant, or had conclusively shown contributory negligence on the part of plaintiff in undertaking to cross the train, under the circumstances.

The testimony above stated was sufficient to rebut contributory negligence. The question in that respect is, Was plaintiff's conduct that of an ordinarily prudent person? The fact that he observed some circumspection before undertaking the act, and his acting upon appearances and conditions which he observed, and which suggested that the train was not about to be moved at the time, made his negligence a question of fact. It is true none of the employés had told him to cross as he did; and it may be conceded that if he had proceeded to cross between the cars without taking any notice whatever of his surroundings, and of what was being done in connection with the train, it might have been said that his injury was due to his recklessness. There are cases which hold that, where a person thus crossing over a train knows at the time that an engine is attached to the train, he must take notice that it is liable to be moved at any moment, and cannot recover if he attempts to cross over and is injured by a sudden movement of the train. This is a reasonable doctrine. Plaintiff admitted that he observed the engine's position, but stated: "When I approached the crossing, I said I did not see anybody about the train at all; that is, the train crew. I had met Mr. Finch. I had seen no one but Mr. Finch before I got to the crossing. I heard the noise of whooping and hollering at the cattle, made by the men at the stock pen, and knew they were loading cattle, that they loaded one car at a time, and knew that they moved the car that was loaded and placed another one, then loaded another one, moved the train and `spotted' it, as they call it, at the chute, and then loaded another and spotted that." It thus appears that he consulted the existing conditions as to the probability of the danger of the train moving. Not being able to see what was being done at the pen, which was on the other side of the train from him, but hearing sounds there...