Galveston, H. & S. A. Ry. Co. v. Wagner
| Decision Date | 19 October 1927 |
| Docket Number | (No. 990-4852.)<SMALL><SUP>*</SUP></SMALL> |
| Citation | 298 S.W. 552 |
| Parties | GALVESTON, H. & S. A. RY. CO. v. WAGNER et al. |
| Court | Texas Supreme Court |
Action by George F. Wagner and another against the Galveston, Harrisburg & San Antonio Railway Company. A judgment in favor of plaintiffs was affirmed by the Court of Civil Appeals (291 S. W. 664), and defendant brings error. Affirmed.
Baker, Botts, Parker & Garwood, of Houston, and Dibrell & Mosheim, of Seguin, for plaintiff in error.
A. J. Wirtz and R. A. Weinert, both of Seguin, for defendants in error.
The defendants in error recovered judgment in the district court against the plaintiff in error for the sum of $2,485 damages resulting from the death of Miss Nora Wagner, alleged to have been caused by the negligence of the plaintiff in error. The trial was before a jury; and among the issues of fact which the jury resolved against the railway company, and upon which the judgment was rendered, was that of discovered peril. The plaintiff in error contends that there is no evidence raising this issue.
Although the evidence is sharply conflicting in important respects, there is evidence supporting the following facts, to wit:
The railway track of the plaintiff in error runs east and west through the small town of Kingsbury, in Guadalupe county. The deceased, Miss Nora Wagner, was struck and killed in said town, in the daytime, by one of the passenger trains of the plaintiff in error, which was scheduled to stop a very short time at the depot in Kingsbury for the purpose of taking on and discharging passengers and mail. The depot stood on the south side of the main track upon which the train in question was running; and a side track ran parallel with the main track, on the north side thereof and about 20 feet therefrom. The post office at Kingsbury is situated at a point about 150 feet northwest of the depot, across an open plaza and intervening street. There was a public crossing over the railway tracks at a point about 35 feet west of the depot. The deceased was postmistress at Kingsbury, and it was part of her duties, as such, to deliver and receive mail to and from the passenger trains of the railway company, on the south side of the main track, at the depot, and she had been regularly performing this duty for some months.
On the occasion in question, the passenger train was approaching the depot from the west, and at about the time the train whistled for the station the deceased left the post office and went running, as fast as she could run, towards the depot. She carried in her hands a sack of mail for the purpose of delivering it to the mail clerk on the incoming train, on the south side of the main track, at the depot, which was the regular place for mail from that post office to be delivered. The mail sack was such as is ordinarily used in the United States mail service, being about 2½ or 3 feet long, and about 18 inches in diameter. When the deceased left the post office she ran directly toward the depot, without stopping, hesitating, slackening her speed, or swerving from a direct line to the depot, until she was struck by the train. At the time she was struck and killed, she had cleared both rails of the main track, and was struck by the cylinder of the engine which protruded from its south side. The point at which she was struck was immediately south of the south rail of the main track, and about opposite the west end of the depot. While the train was approaching the station, the fireman was sitting on the fireman's seat in the north side of the cab of the engine, and the engineer was sitting in his seat on the other side. The fireman was looking from the window of the cab, and first saw the deceased running towards the depot when she had reached a point about 30 feet north of the side track, which point is about 50 feet north of the main track upon which the train was running. At the...
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