G., H. & S. A. R'Y Co. v. Bracken

• Decision Date: 06 March 1883
• Docket Number: Case No. 1576.
• Citation: 59 Tex. 71
• Parties: THE G., H. & S. A. R'Y CO. v. LAURA BRACKEN ET AL.
• Court: Texas Supreme Court

59 Tex. 71

THE G., H. & S. A. R'Y CO.

v.LAURA BRACKEN ET AL.

Case No. 1576.

Supreme Court of Texas.

Mar. 6, 1883.

APPEAL from Harris. Tried below before the Hon. James Masterson.

Suit by Laura Bracken, for herself and in behalf of her children, against appellant, for damages claimed for the alleged negligent killing of her husband, Jacob Bracken, by the appellant's railway cars run by appellant's agents.

The defendant answered by a general denial.

There was a jury, verdict and judgment for plaintiffs for $750; motion for new trial overruled.

The appellant had a depot and platform at Harrisburg, and steps led down from the platform to the track, and a platform extended out from the hotel on the opposite side, from which there were also steps leading down to the track. On the occasion of the accident, an engine of defendant, with a coach attached, was backing down on its track in full view. A witness for plaintiff says: “I don't know how fast the engine was running; they were running pretty lively.” A witness for defendant testified: “They were running about eight miles an hour. The engineer had just given three short, sharp whistles, and the bell was ringing. The deceased descended the steps leading down from the platform and started to cross the track when the engine was within ten or fifteen feet of him, and he could not have helped seeing it if he had looked, and was struck on the shoulder by the tender and thrown against the platform supports, which knocked him back and the wheels ran over him.”

There was nothing in the evidence to show that there was anything unusual, as to time, place or circumstance, in the movement of the engine and car on that occasion.

The second assignment of error is as follows: “Second. The evidence shows that the deceased approached the track of the railroad and started across it without stopping, or looking, or listening, when the view was unobstructed, and the train was near and approaching, and thereby caused his death.”

A witness saw the engine coming, and as he was going to cross the track ““halloed” for Bracken to look out. He did not have time to cross, and he turned to look at him (witness). “It was mighty near him when I called to him, and he turned to look at me and then the tender struck him.”

Another witness says: “Deceased passed along the platform with his head down, seeming absorbed in his own thoughts.”

“The engine and tender, pulling a car, was backing down in full view.” Deceased “descended the steps and started to cross the track. The engineer had just given three short, sharp whistles, and the bell was ringing. I saw the man's danger, as I suppose every person on that platform did who was looking that way at all, and instinctively I called out to him to look out.”

“I heard Ward, the witness, call to him, and I thought put out his hand to catch him or pull him back. The man turned to look at Ward, I presume to see who called him, when the tender struck him.”

“I could see the engine coming, and so could any person on the platform who chose to look. The view is entirely unobstructed, and if Bracken had held his head up and looked he could not have helped seeing the engine coming. I suppose it was within ten or fifteen feet of him when he attempted to cross.”

E. P. Hill, for appellant.

W. P. Hamblen, for appellee, cited 1 Thomp. on Neg., p. 423, § 6, and note 11.

WILLIE, CHIEF JUSTICE.

A reversal of the judgment in this case is sought on the alleged ground that the evidence does not support the verdict.

It is apparent from the proof that at the time of the accident the engine was going backwards at the rate of eight miles per hour, and was pulling with it a coach, for the purpose of making a running switch at a distance of from one hundred and fifty to four hundred feet below the point where the accident occurred. It is further apparent that the deceased placed himself in a position where the train must necessarily strike him as it passed, at a time when it was within a few feet of him,--almost upon him, as one of the witnesses expressed it. It appears further that the train was in full view from the point where deceased attempted to cross the track for a long distance, and that he did not look to the right or left, or use his senses of sight and hearing, or use any care whatever to prevent being injured. When warned of his danger by one near him, he turned in the direction of the person warning him, and then it was that he was struck by the tender, and received the wound that caused his death.

There can be no doubt but that such circumstances showed a high degree of negligence on the part of the deceased, and precluded him from recovery in the present action. The principles applicable to such facts have been so well settled by decisions of the highest courts of the country that it is unnecessary to discuss them. Every one about to step upon a railroad track must “listen and look before attempting to cross, in order to avoid an approaching train, and not walk carelessly into the place of possible danger.” R. R. Co. v. Houston, 95 U. S., 702. “Failure to do so is not merely an imperfect performance of duty, but an entire failure of performance, which will bar his right to recover damages if it contributed...