Galveston, H. & N. Ry. Co. v. Olds

• Decision Date: 19 May 1908
• Citation: 112 S.W. 787
• Court: Texas Court of Appeals
• Parties: GALVESTON, H. & N. RY. CO. v. OLDS et ux.

112 S.W. 787

GALVESTON, H. & N. RY. CO. v. OLDS et ux.

Court of Civil Appeals of Texas.

May 19, 1908.

On Rehearing, October 12, 1908.

Appeal from District Court, Galveston County; Lewis Fisher, Judge.

Action by J. H. Olds and wife against the Galveston, Houston & Northern Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Baker, Botts, Parker & Garwood and Mott & Armstrong, for appellant. James B. & Charles J. Stubbs and I. H. Bowers, for appellees.

McMEANS, J.

This is an appeal from a judgment in favor of appellees and against the appellant for $5,500 for damages resulting from the death of Mary Olds, a child of appellees, who was run over and killed on appellant's railway track near Nadieu section house by a locomotive drawing a freight train. Appellees alleged that the engineer and fireman operating said train, had they used ordinary care and prudence in the discharge of their duty, which they did not do, could have seen the said Mary Olds from the time she first got on the track, at a beaten path which led on to the track, which itself was much used as a path, and which fact was known to the defendant, until she had walked about 50 yards, meeting the train, and was run over and killed by it, and said trainmen could have seen her at least 800 yards from where she entered upon said track, had they used ordinary care and prudence in the discharge of their duties, and kept a proper lookout, and that it was negligence on their part in not discovering the said Mary Olds and her perilous condition in time to have avoided killing her; that the day was clear and sunshiny, and the roadbed was elevated and ballasted with gravel, and straight, level, and free from any obstruction whatever a mile either way from the place of the accident. In the alternative the plaintiffs alleged that the engineer and fireman did see the said Mary Olds and her peril on the track in time to have stopped the train and avoided killing her, which they negligently and carelessly failed to do; that the engineer and fireman negligently failed to ring the bell or sound the whistle for brakes, after discovering the said Mary Olds and her peril on the track, and, had they so sounded the whistle, the two brakemen on the train could have applied the brakes and stopped the train in time to have prevented the catastrophe. Appellant answered by special exception and by general denial, and further alleged that appellees were negligent in permitting the child, Mary Olds, to be upon the track, and in not keeping her off the track, and that they were further negligent in intrusting the care of the child to a boy 11 years of age, and that the boy was negligent in failing to care for the child, and in failing to keep her off the track. The Galveston, Harrisburg & San Antonio Railway Company was made party defendant to the suit, and under the charge of the court verdict was rendered in favor of that company, and judgment was accordingly entered.

The evidence justifies the following findings of fact: On or prior to March 1, 1905, J. H. Olds was section foreman for defendant, Galveston, Houston & Northern Railway Company, and he and his wife, the plaintiff Sallie Olds, and their children, one of whom, Mary Olds, was then 25 months old, lived in the section house near Nadieu station. The section house was on the railway right of way, and near the track. It was inclosed by a substantial fence made of planks, in which there was a gate fastened with a latch, which was placed too high on the gate to be reached by the child, Mary, and she unaided could not open the gate. On said date, while J. H. Olds was at work upon the track about three-fourths of a mile from the section house, and the mother was attending her household duties, the locomotive of a passing freight train of defendant ran over and instantly killed the child. The engineer saw the child on the track, and its peril, when about 450 feet from it, and thereafter used all the means at his command to stop the train and save the life of the child, but without avail. He testified on the trial that he saw an object on the track when a distance of 2,500 feet, and that he watched it, and not until he was within 700 or 800 feet from it did he recognize the object as a child. He further testified that he had previously made a report of the accident to the railway company, in which he stated "that when he saw the object was a child on the track, he was not over 150 yards (450 feet) from where it was, and was running at 30 miles per hour. The engine moved about 25 feet after it struck the child." And, further: "I am sure I was not over 150 yards from the child when I first saw it, and it was a hard matter at that distance to distinguish it from the gravel." On the witness stand he stated that he had made this report, and that he made it to the best of his belief, and that his testimony on the witness stand that he recognized the object as a child when 700 or 800 feet away, and stopped practically in the same distance, was also to the best of his belief. We find that the child could have been distinguished as a child at about 1,000 feet from where she was on the track; and, in the absence of any explanation of the conflict in the two statements sworn to by the engineer, we conclude, and in deference to the verdict, find, that the engineer did not in fact see the child on the track until within 150 yards of it, and that he was negligent in not seeing it sooner, and that his negligence was the proximate cause of the child's death. We further find that the train, just before the accident, was running slower than the usual speed of such trains at that point, and that, even if it had been running at the rate of 30 miles per hour, it could have been stopped within 500 feet.

A short time before the train came, Mary Olds and her sister, 8 years of age, and Reuben Peck, a boy of 11 years of age, who lived at the section house, and to whose care the child, Mary, was at the time intrusted by Mrs. Olds, were playing in the section house inclosure. About 10 minutes before Mary was killed, Mrs. Olds, who was preparing supper, upon hearing the whistle of the train, called out to Peck to know where Mary was, and received the answer, "Here she is." Mary, it seems, thereafter evaded Peck's watchfulness, and, slipping between the parallel planks of the fence, went out upon the railroad track in the direction of the approaching train, and had walked on the track about 50 yards when run over. Mrs. Olds used ordinary care in her watchfulness of Mary to prevent her going upon the track, and was not guilty of negligence in intrusting her to the care of Peck, who was an intelligent and obedient lad, nor was Peck guilty of negligence in not preventing the child from going upon the track. Rule 31 (67 S. W. xvi), governing the preparation of briefs, requires that to each proposition under each assignment there shall be subjoined a brief statement, in substance, of such proceedings, or part thereof, contained in the record as will be necessary and sufficient to explain and support the proposition, with a reference to the pages of the record. A reference simply to the pages of the record will not suffice. The rule further requires that the statement must be made in reference to the whole of that which is in the record having a bearing upon the proposition. Under this rule, where the giving or refusing to give a special charge is complained of, it is not sufficient to set out the charge or its substance; but, where it undertakes to apply the law to the facts proved, enough of the evidence bearing upon the proposition sufficient to explain and support it should also be given. And this is likewise the case when the complaint is made to the admission or rejection of evidence. This rule was made for the purpose of facilitating the work of appellate courts, and must not be disregarded. This court is of the opinion that appellant's assignments Nos. 15, 16, 17, 18, 19, 37, 38, 39, 40, 48, 49, 50, 52, and 55 are not presented in accordance with the rule, and they will not, therefore, be considered.

The first, second, third, and fourth assignments of error complain that the charge of the court was misleading, in that it induced the jury to believe that it was the absolute duty of the trainmen, as soon as an object was discovered on the track, to have stopped the train, whereas such duty did not devolve upon them as soon as they saw an object, but not until they saw it was a child and realized its peril.

Paragraphs five and seven of the charge are as follows: "(5) You are further charged that, if the child Mary Olds was discovered on the track by the agents and servants of the defendant company, it was their duty to exercise ordinary care in using all the means within their power, consistent with the safety of the train and those on it, to have stopped the train, or to have prevented the killing of the child after its presence was discovered on the track, if it was discovered, and a failure to use ordinary care in this respect would be negligence on the part of the defendant, rendering defendant liable, even though the parents of the child may have been guilty of contributory negligence. * * * (7) If you believe from the evidence that, on or about the 1st day of March, 1905, Mary Olds, the child of the plaintiffs, J. H. Olds and wife, was run over and killed by a train operated by the defendant, the Galveston, Houston & Northern Railroad Company, and if you further believe from the evidence that the said child was discovered on the track of the defendant company, by the servants of said company operating said train, in time to have prevented said train from running over and killing said child, by the use and exercise of ordinary care on the part of said servants, and if you further believe from the evidence that after the discovery of said child upon the track (if you find it was discovered on the...