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

• Decision Date: 08 November 1899
• Citation: 54 S.W. 309
• Parties: GALVESTON, H. & S. A. RY. CO. v. SIMON.
• Court: Texas Court of Appeals

54 S.W. 309

GALVESTON, H. & S. A. RY. CO. v. SIMON.

Court of Civil Appeals of Texas.

November 8, 1899.

Appeal from district court, El Paso county; A. M. Walthall, Judge.

Action by Morris Simon against the Galveston, Harrisburg & San Antonio Railway Company to recover for personal injuries. From a judgment in favor of plaintiff, defendant appeals. Reversed. Motion for rehearing overruled.

This is an action for personal injuries brought by appellee, plaintiff below, against the appellant. The plaintiff alleged, in substance, as his cause of action, that on the 21st day of February, 1897, he was riding on horseback along Kansas street, in the city of El Paso, and about to cross defendant's railway track just easterly from the passenger depot; that just west of the crossing there was standing a train made up with an engine headed easterly; that on the opposite side of the crossing, and easterly and about five feet from the front of the engine, there was standing on the track a Pullman sleeping car; that plaintiff, riding southerly, started to pass through between said engine and the Pullman car, when the engineer or employé of defendant in charge of the engine negligently caused the steam to be let off or let on, so as to create a hissing and startling noise, which frightened his horse, and caused him to jump suddenly towards the left, and strike plaintiff's leg against the bumper or coupler of the said car, thereby breaking his leg; that through the negligence of the defendant and his employé in allowing said sleeping car to be in the street, and in making said noise, and in letting off said steam, he had been damaged in the sum of $10,000. The defendant's pleadings consisted of a general demurrer, general denial, a plea of not guilty, plea of contributory negligence, and a special plea that plaintiff's injury resulted from other and independent causes than those alleged, for which defendant was not responsible. The case was tried before a jury, and the trial resulted in a verdict and judgment in favor of plaintiff for $1,600. The facts are uncontroverted that appellant's engine, to which a train was attached, was standing, facing east, on the west side of Kansas street, a public and much-used thoroughfare, in the city of El Paso, awaiting the signal to start eastward on its journey. At that time a Pullman palace car, which had been left by appellant there, was standing in Kansas street, on a track parallel to the one upon which the engine was, about eight or ten feet from, and nearly opposite, the head of the engine. In riding down Kansas street on horseback, appellee, in endeavoring to cross appellant's railroad track between the engine and said palace car, his horse becoming suddenly frightened from a startling noise emanating from appellant's engine, was by his horse pushed against the Pullman car, and his leg broken and otherwise bruised and injured.

Beall & Kemp, for appellant. Millard Patterson and C. N. Buckler, for appellee.

NEILL, J. (after stating the facts).

1. The court, defining "negligence" to be the want of that degree of care that an ordinarily prudent person would have exercised under the same circumstances, is sustained by the opinion of the courts of last resort in this state. Manufacturing Co. v. Bradley, 52 Tex. 599; Railway Co. v. Nesbitt (Tex. Civ. App.) 38 S. W. 243; Railway Co. v. Safford (Tex. Civ. App.) 48 S. W. 1105.

2. In our opinion, the evidence was such as to require the court to submit to the jury the question as to whether the escape of the steam causing the noise which frightened appellee's horse was caused by an employé of appellant. It is true that appellant's employés in control and charge of the engine all testified that none of them caused the steam to escape, and that its escape was through a safety valve of the engine, so constructed as to let off surplus steam automatically. But appellee and his companion, Mr. Blum, both testified that the steam which caused the noise came from the side of the engine, near the front of the engine.

3. The court in the fourth paragraph of the charge instructed the jury that if they believed from the evidence that when the plaintiff attempted to cross defendant's track on Kansas street there was standing at said crossings one of defendant's engines, and that there was standing upon and in the street a Pullman palace car, and that said engine was "popping off" steam, and that said steam made a noise which frightened plaintiff's horse, and that the horse ran plaintiff against the Pullman car, and he was thereby injured, and that the act of leaving said car standing on the street was negligence on the part of defendant, to find for plaintiff, unless they should find that he was guilty of contributory negligence in attempting to cross the street at said time and place. This paragraph was objected to by appellant, upon the ground that it was not warranted by appellee's pleadings. We think that the allegation "that, through the negligence of the defendant and its employés in allowing said sleeping car to be in the street, and in making said noise, and in letting off said steam, as hereinbefore stated, he has been damaged," etc., which appears in plaintiff's petition, was sufficient to warrant the court in giving the charge. The...