Galveston, H. & S. A. Ry. Co. v. Nicholson

• Decision Date: 23 May 1900
• Citation: 57 S.W. 693
• Parties: GALVESTON, H. & S. A. RY. CO. v. NICHOLSON et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

57 S.W. 693

GALVESTON, H. & S. A. RY. CO. v. NICHOLSON et al.¹

Court of Civil Appeals of Texas.

May 23, 1900.

Appeal from district court, Medina county; I. S. Martin, Judge.

Action by Mabel C. Nicholson and others against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiffs, defendant appeals. Modified.

Baker, Botts, Baker & Lovett and Walter Gillis, for appellant. Ed De Montel, S. B. Easley, and H. C. Carter, for appellees.

FLY, J.

This suit was instituted by Mrs. Mabel C. Nicholson and her minor daughters, Minnie S. Nicholson and Lillie A. Nicholson, to recover of appellant the sum of $50,000 damages for the death of Robert Nicholson, the husband and father. A trial by jury resulted in a verdict and judgment of $25,000, $10,000 of which was apportioned to the widow and $7,500 each to the children. The testimony was to the effect that deceased was the engineer on an engine running "light," which was shown to mean not drawing cars, and that he backed his engine on a siding at Lacosta, to permit a fast train, known as the "Sunset Limited," to pass. The fireman on the locomotive unlocked the switch so that the engine could pass, and presumably left it open, as the Sunset Limited passed off the main track and on the siding, and collided with the locomotive in charge of Robert Nicholson, and he was killed.

It is contended by appellant that under the rules of the railway company it was the duty of deceased to see that the switch was properly readjusted, and that, failing to do so, his negligence caused his death, and appellees could not recover. The rules introduced in evidence were as follows: "(17) Conductors will be held responsible for the proper adjustment of the switches used by them and their trainmen, except where switch tenders are stationed. Whoever opens a switch shall remain at it until it is closed, unless relieved by some other competent employé. When there is more than one train to use a switch, it must not be left open, unless one of the trainmen of the following train is at the switch and takes charge of it." "(120) Conductors and engine men will be held equally responsible for the violation of any of the rules of their trains, and they must take every precaution for the safety of their trains, even if not provided for by the rules." Under these rules we do not think it could be said as a matter of law that deceased was guilty of negligence if he did not personally see that the switch was properly adjusted. It was a question of fact, which was properly submitted by the court to the jury.

The third assignment of error is not well taken. As to the adjustment of a switch that had been used, the engineer and the fireman occupied the same position under the rules, and there is nothing in the evidence that tends to prove negligence on the part of the deceased.

It was argued by counsel for appellee that it was the duty of appellant "to keep everything that would possibly prevent danger," having in view the failure of appellant to place switch lights at the place of the accident. We know of no rule that prohibits counsel from giving expression before the jury of his views of the law; and, if he did not have that right, no damage could have resulted, for the reason that, upon objection to the remarks, the court stated that he was not responsible for counsel not knowing the law, and counsel promptly withdrew the statement to which objection had been made. In the charge the jury were instructed not to consider the question of switch lights in making up their verdict.

Before announcing ready for trial, appellant filed its application for a change of venue upon the ground that there existed in Medina county so great a prejudice against it that it could not obtain a fair and impartial trial of the cause in that county. The application was supported by the affidavit of 12 resident citizens of Medina county, who swore to the existence of such prejudice in the county that appellant could not obtain a fair and impartial trial. Appellees filed in...