G., C. & S. F. R'Y Co. v. Greenlee

• Decision Date: 07 November 1884
• Docket Number: Case No. 1678.
• Citation: 62 Tex. 344
• Court: Texas Supreme Court
• Parties: G., C. & S. F. R'Y CO. v. JAMES S. GREENLEE ET UX.

62 Tex. 344

G., C. & S. F. R'Y CO.

v.JAMES S. GREENLEE ET UX.

Case No. 1678.

Supreme Court of Texas.

Nov. 7, 1884.

APPEAL from Bosque. Tried below before the Hon. Jo Abbott.

Suit by husband and wife in behalf of the latter, for personal injuries from alleged negligence of the defendant and its servants. On the 29th of September, 1881, James S. Greenlee and his wife, Lou M. Greenlee, the plaintiffs in this cause, with their five children, were traveling from the town of Meridian, to Comanche Springs, in a wagon drawn by a yoke of oxen, along the public road. This highway and the defendant's railway cross each other about four miles south of Meridian; and, as the plaintiffs' wagon and team were approaching this crossing and were near thereto, a south-bound freight train of the defendant, operated by its servants, passed the point of intersection of the two roads, when the plaintiffs' oxen turned suddenly and sharply to one side, upsetting the wagon and casting Mrs. Greenlee upon the ground, inflicting upon her bodily injuries.

Mrs. Greenlee and her husband brought this suit to the January term, 1882, of the Bosque county district court, to recover, in her behalf, $20,000 actual or compensatory damages and $10,000 exemplary damages for the injuries thus received by her.

The amended original petition contained two counts. The grounds of action in the first count were that the defendant had negligently placed, at and near the intersection of its railway with the highway, heaps of earth and other obstructions to the view of a traveler approaching the intersection along the highway; that in constructing its railway across the highway, the defendant had, by embankments and excavations, altered the condition of the highway at the point of intersection, rendering it and the approaches thereto unsafe to travelers in vehicles, and had negligently failed to restore it to its proper condition, or to erect at or near the point any sign to give notice of the proximity of its railway and warn persons of the necessity of looking out for the cars; that, as the plaintiffs, unconscious of the approach or proximity of any train, were, on the 29th of September, 1881, approaching the intersection, in a wagon drawn by oxen, along the highway, and were about to cross the railway at the intersection, a locomotive operated by defendant's servants and drawing a train of cars of defendant, by and through defendant's negligence, without blowing any whistle or ringing any bell, ran on the railway across said highway, at a great rate of speed, and, without any fault or negligence on the part of plaintiffs, struck the wagon and team with great violence, knocking down the team and overturning said wagon, thereby violently throwing Mrs. Lou M. Greenlee upon the ground and inflicting great and serious injuries upon her shoulder, hip and spine, from which she was confined to her bed many months; and that defendant's servants, after they had discovered plaintiffs, maliciously, and with gross negligence,continued the train at its former speed, and made no effort to stop the same.

To plaintiffs' petition the defendant pleaded: 1st, general demurrer; 2d, special demurrers to so much of the first and second counts of said petition as sought to recover of defendant exemplary damages; 3d, the general issue; 4th, that the injuries complained of were caused by the negligence and improper conduct of the plaintiffs, and not otherwise; 5th, that the alleged injuries to Mrs. Greenlee, if, in fact, any hurt or injury had happened to her, were caused by the plaintiffs' careless and improper management of their team and its unruliness as they were approaching the crossing, and without any default of defendant; 6th, contributory negligence on the part of the plaintiffs.

The court overruled the defendant's general demurrer, but sustained its special demurrers to plaintiffs' claim in the first and second counts of their amended original petition, for exemplary damages. The cause was tried by a jury. Verdict for plaintiffs for $15,000, and judgment.

Gresham & Jones, for appellant, on the proposition that the judgment should be reversed for an erroneous charge calculated to mislead, and based on a conjectural state of facts, cited: Andrews v. Marshall, 26 Tex., 212;Andrews v. Smithwick, 20 Tex., 111; Railway Co. v. Houston, 95 U. S., 697;United States v. Breitling, 20 How. (U. S.) 252;McKeon v. R'y Co., 42 Mo., 79; Michigan Bank v. Elder, 9 Wall. (U. S.), 544; Kennedy v. R'y Co., 36 Mo., 352; Graham & Waterman on New Trials, vol. 3, p. 824.

On the measure of damages, they cited: Railway Co. v. Le Gierse, 51 Tex., 190 and 204; Railway Co. v. Arms, 91 U. S., 494; Railway Co. v. Kelly, 31 Pa. St., 372; Railway Co. v. Zebe, 33 Pa. St., 318; Thompson on Neg., vol. 2, p. 1255; Sutherland on Damages, vol. 1, 17 and 18; Sedgwick on Dam., vol. 1, 34 and note a.

That the wife is bound by the negligence of the husband, they cited: Carlisle v. Sheldon, 38 Vt., 440; Lake Shore, etc., Railway Co. v. Miller, 25 Mich., 273; Allyn v. Boston, etc., Railway Co., 105 Mass., 77; Pierce on Railroads, 283.

Lumpkin, Alexander & Winter, for appellee, cited: Texas Pac. R'y Co. v. Chapman, 1 Law Rev., 395 (57 Tex., 75);Hubby v. Stokes, 22 Tex., 217;Carter v. Eames, 44 Tex., 547;McClane v. Rogers, 42 Tex., 214;5 Tex., 318;McFarland v. Wofford, 16 Tex., 610; Thompson on Charging Jury, sec. 117; H. & T. C. R'y Co. v. Gorbett, 49 Tex., 573;Wood v. Chambers, 20 Tex., 247; Spearman v. California St. R., 8 Am. and Eng. R'y Cases, 193.

WATTS, J. COM. APP.

Where a railroad intersects or crosses a public highway, the statute imposes upon the company the obligation to restore the highway either to its former state, or to such condition as not to unnecessarily impair its usefulness, and also to keep the crossing in good repair. If, therefore, after constructing a railroad across a public highway, the company restores it to such condition as not to unnecessarily impair its usefulness as a highway, and keeps the crossing in good repair, the company will then have discharged the duty imposed by the statute.

Upon that branch of this case the court instructed the jury as follows:

“The law of this state requires railway companies to keep in good repair all crossings of public highways and the approaches thereto…. If you believe from the evidence that the plaintiff Lou M. Greenlee was injured as alleged in the petition, and that such injury resulted from a collision of the plaintiffs' wagon with defendant's train; that is, that said collision was caused by the neglect of defendant's employees … to keep said crossing in good repair, as required by law, and that the plaintiffs were in no way themselves guilty of negligence in approaching said crossing, then, if you so believe, you will find for plaintiffs…. Or, if you believe from the evidence that there was no collision between the plaintiffs' wagon and the defendant's cars, but believe from the evidence that the plaintiffs' approach to said crossing was made with ordinary care, caution and prudence, and that by reason of the negligence of defendant's employees … to keep said crossing and the approaches thereto in good repair, as required by law, the plaintiffs' oxen came in such close proximity to the railroad, before the approaching train was discovered, as to cause said oxen to take fright and overturn the plaintiffs' wagon, and that thereby the said Mrs. Lou M. Greenlee was injured as alleged, you will, if you so believe, find for the plaintiffs.”

That instruction the appellant claims is erroneous and misleading, as there was no evidence tending to show that the condition of the crossing contributed to the accident. All the evidence as to the condition of the crossing and its approaches is found in the testimony of James S. Greenlee, J. N. Parks and V. B. Wilson. It was admitted that the highway upon which appellees were traveling at the time of the accident was a second class public road. Greenleesays that in the direction he was traveling, before reaching the railroad, the highway goes down a hill, where for some distance it is tolerably steep, but nearer to the railroad the descent is not so abrupt. Wilson makes about the same statement. Parks says he thinks the descent next to the railroad is perhaps a little more abrupt now than it was before the railroad was constructed, on account of some dirt they threw upon the road.

None of the witnesses state that the highway has been so impaired by...