Ft. Worth & D. C. Ry. Co. v. Mackney

• Decision Date: 16 February 1892
• Citation: 18 S.W. 949
• Parties: FT. WORTH & D. C. RY. CO. v. MACKNEY.
• Court: Texas Supreme Court

18 S.W. 949

FT. WORTH & D. C. RY. CO. v. MACKNEY.

Supreme Court of Texas.

February 16, 1892.

Commissioners' decision. Section A. Appeal from district court, Tarrant county.

Action by W. H. Mackney against the Ft. Worth & Denver City Railway Company to recover damages for personal injuries. Plaintiff obtained judgment, and defendant appeals. Affirmed.

Stanley, Spoonts & Meek, for appellant. Ball, Wynne & McCart, for appellee.

COLLARD, J.

This suit was brought by the appellee, W. H. Mackney, against the Ft. Worth & Denver City Railway Company for damages. The grounds of the suit are that plaintiff, while in the discharge of his duty as fireman on a locomotive of the Gulf, Colorado & Santa Fe Railway Company, at Saginaw station, where the two railroads cross, one of defendant's engines and trains, by the negligence of the operatives in charge of the same, ran upon and collided with the locomotive plaintiff was on, without fault on his part, and injured him seriously and permanently. The petition described the injuries. It is alleged that defendant's servants in charge of its train failed to stop upon approaching the crossing, failed to give signals of their approach, and failed to keep proper lookout for the crossing, and thereby caused the collision. The special answer of defendant set up contributory negligence on the part of the plaintiff; that he failed to keep a lookout for and give warning of the approach of defendant's train, as was his duty to do; and his failure to do so caused the collision. It is stated that the defendant's train reached the crossing before the other train, had a clear right of way, had stopped and whistled for the crossing, and, after it had stopped and started forward, it was run into by the other train by the negligence of plaintiff and his co-employe. It is also stated as a defense that one Johnson, a co-employe and fellow-servant of plaintiff, was engineer on the Santa Fe train, and he failed to stop on approaching the crossing, and recklessly ran his train into defendant's, with full knowledge that defendant's train, under the rules, was entitled to the track, that the negligence of Johnson was the direct and proximate cause of the injury to plaintiff. There was a verdict and judgment for plaintiff for $5,000. Defendant appealed and assigned errors.

The evidence was conflicting; that for plaintiff showing that the signals were duly given on the Gulf, Colorado & Santa Fe passenger train for the crossing; that the train came to a full stop at the stop-post before reaching the crossing, and moved up to the crossing first, the locomotive being on the crossing when the defendant's freight train struck the locomotive of the Sante Fe off the crossing. For the defendant, on the other hand, the evidence showed that its train arrived and stopped first, gave the proper signals, and then moved up to the crossing, where the collision occurred. "The Fort Worth and Denver engine struck the Santa Fe engine, and turned her over, and stood on a portion of the Santa Fe engine-tank, smashing both engines and tanks, turning over one stock-car, and killing about eleven head of cattle" on the freight train.

It is claimed by appellant that the following portion of the court's charge is erroneous, because it is upon the weight of evidence: "You are instructed that, if you believe from the evidence that the engineer operating the engine of the Fort Worth & Denver City Railway Company, mentioned by the witnesses, failed, on approaching the crossing of the Gulf, Colorado & Santa Fe Railway Company, to bring his engine to a full stop before reaching the crossing, at such distance therefrom as, under the circumstances, common prudence would dictate as necessary to avoid colliding with the train on the track of the Gulf, Colorado & Santa Fe Railway Company, and that by reason of such failure to stop within such distance the collision occurred, the defendant would be negligent, and liable to the plaintiff for any injury that he may have sustained on account of the negligence." It is insisted that the charge of the court is on the weight of evidence, because it informs the jury that certain facts stated would amount to negligence; that is, if defendant did not "bring its engine to a full stop before reaching the crossing, at such distance therefrom as, under the circumstances, common prudence would dictate as necessary to avoid colliding," etc., defendant would be negligent. The argument in favor of this position is that the statute requiring an engine approaching a crossing of the railroads to be brought to a full stop does not prescribe where the stop shall be made. The statute merely says that in such case the engine shall "be brought to a full stop." Rev. St. art. 4232. The statute being silent upon the subject, it was necessary for the court to tell the jury where the stop should be made; not at any given distance, but where common prudence would dictate it should be made, to avoid a collision on the crossing. It was not error to instruct the jury that such failure would be negligence, because the want of necessary care would be negligence. This was submitted. The court carefully guarded the effect of the charge in creating no liability on account of such negligence unless it caused the collision. The charge was an admissible one, and could not well be improved.

The next assignment of error complains of the following charge of the court: "If you believe from the evidence that the engineer in charge of said engine of the Fort Worth & Denver City Railway Company did stop his engine within the proper distance of said crossing, as above indicated, but if you believe from the evidence that said engineer, after having stopped his engine, started said engine towards the crossing, and that when he did so he knew that the train of the Gulf, Colorado & Santa Fe Railway Company was approaching said crossing, and that the situation was such as to indicate to a man of ordinary prudence, occupying the position in which said engineer was at the time, to proceed across said crossing would probably and in the ordinary course of events result in a collision with the train of the Gulf, Colorado & Santa Fe Railway Company, * * * the defendant would be negligent, and liable to plaintiff for any injury plaintiff may have sustained by reason of any collision." The objection to this part of the charge is that there was no evidence in the case indicating that the engineer of the Ft. Worth & Denver City Railway Company saw the train of the other road after he stopped his engine, and before starting; and that there were no facts in evidence which made such an hypothesis necessary. It was a dark night when the collision occurred. It was open prairie around Saginaw, and the head-lights of each of the approaching trains were visible to each other for a mile and more, and on this occasion were seen by operators of each of the trains some time before reaching the station.

The conductor of the defendant's train testified that the speed of his train at the time of collision was four to six miles an hour. "We stopped three or four hundred feet from the crossing. The speed of the train was about four miles an hour at the time of the collision. I saw the Santa Fe train between a quarter and half mile before the accident. * * * I could and did see the train on the Santa Fe without making any effort more than simply looking. When I started to cross the track, the Santa Fe train [passenger] was in sight about between one-quarter and one-half of a mile down the track. In my judgment, at the time I started to run over the crossing there was not a chance for a collision of the trains. The Santa Fe train blew signal whistle for station at Saginaw about a quarter of a mile before reaching the crossing. I cannot say whether the train stopped before reaching the crossing or not. The Santa Fe train was moving over the crossing at the time of the collision." The engineer of the defendant's train testified: "My train was composed of 16 cars of cattle. We stopped for the crossing about nine car-lengths from the crossing. We whistled off breaks, as the crossing was clear, and no train in sight at the time. I got my train under headway, and after I got so near to the crossing that I could not stop again I saw the train coming up on the other road. I supposed it was a freight train, and that it would stop; but when it came closer I saw that it was a passenger. I then thought it would stop up close to the crossing and the depot. I could not have stopped my train before getting on the crossing, as it was down grade, and I was running about three or four miles an hour. They did not stop at all, that I could see. When they got behind the depot I whistled a second time, to let them know there was a train on the track; but they did not stop. When I stopped for the crossing I cannot say how far the Santa Fe train was from the crossing, because I could not see them. When I first saw them it was too late for me to stop. They were pulling up to the depot at the time. I stopped, and started again to make the crossing, because when I stopped and whistled I could see no train on the other road. When I first saw the Santa Fe train it was near the whistling-post. I had a right to the crossing, because I stopped and whistled, and the crossing was clear. The other train did not stop, that I know of. The night was dark, and misting rain. My head-light could have been seen on that night, if there was no obstruction, for at least a mile and a half. I could have stopped my train, under all the conditions that existed at the time, in about six or eight car-lengths if I had not known they were not going to stop for the crossing. I was within one car-length of the crossing when I first discovered there was going to be a collision. I did not have time to stop my engine. I tried to reverse her, but did not have time. I had to jump off to keep from being killed. The...