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

• Decision Date: 15 April 1914
• Docket Number: (No. 5252.)
• Citation: 166 S.W. 464
• Parties: GALVESTON, H. & S. A. RY. CO. v. PENNINGTON et al.
• Court: Texas Court of Appeals

166 S.W. 464

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

(No. 5252.)

Court of Civil Appeals of Texas. San Antonio.

April 15, 1914.

Rehearing Denied May 6, 1914.

Appeal from District Court, Uvalde County; R. H. Burney, Judge.

Action by Mrs. Ola Pennington and others against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, of Houston. Claude Lawrence, of Uvalde, and W. B. Teagarden, of San Antonio, for appellant. Winbourn Pearce, of Temple, A. L. Curtis, of Belton, and Martin & Martin, of Uvalde, for appellees.

MOURSUND, J.

Mrs. Ola Pennington, for herself, her four minor children, and the parents of her deceased husband, J. L. Pennington, sued appellant for damages, alleged to have resulted to them by reason of the death of said J. L. Pennington, who was killed on May 14, 1913, by one of appellant's trains, on a road crossing near Uvalde, while crossing same with his wagons and teams. It was alleged that said crossing is situated about 300 yards west of defendant's passenger depot at Sansom, which is called "Uvalde," and within the yard limits of the company where it maintains its main track and four other tracks; that the road crossing the tracks at said place is a public road extending from Uvalde to Rock Springs, and is frequently traveled by the public at all times of the day and night; that the crossing is dangerous, in that, approaching the same from either direction, the view of the track and of an approaching train is obstructed, so that it is difficult to see the approach of a train in entering upon said crossing; that the defendant, in the exercise of ordinary care, would and should have maintained a flagman at and near said crossing to warn persons about to enter said crossing of the approach of trains, but the defendant carelessly and negligently failed and refused to maintain a flagman at such crossing, and adopted no means for the protection of persons passing over said crossing. It was further alleged that on or about May 14, 1913, defendant had carelessly and negligently placed its cars for a long distance in either direction from said crossing on one of its tracks passing over said crossing, and lying north of its main track, and also on other tracks lying south of its main line track, and had negligently and carelessly stopped and placed some of said cars, especially those lying upon the track north of the main line track upon said public road and crossing, so that the same was blocked, and room was barely left between said cars for the passage of one wagon, and so that a person, approaching from the north, and going towards Uvalde, could not see the approach of a train from either direction, and especially could not see the approach of a train from the west; that at said time J. L. Pennington was engaged in hauling freight between Rock Springs and Uvalde, and at that particular time was traveling said road with several wagons attached together, drawn by several teams, and was riding the horse on the left-hand side nearest to the front wagon, and was going towards Uvalde; that about dusk he approached said crossing, and, his view being obstructed, as aforesaid, he could not see the approach of the train, and in the exercise of ordinary care, failing to see or hear the approach of any train, he drove between the cars of defendant which were placed upon the side track lying north of its main line track, and as he entered upon said main line track was struck by a delayed fast passenger train of the defendant, which was approaching from the west, and sustained serious injuries from which he shortly thereafter died; that defendant, its agents and employés in charge of said train carelessly and negligently ran said train over said public crossing, while the view of the approaching train was obstructed, at an excessive rate of speed, and carelessly and negligently failed to give any warning or signal by ringing the bell or blowing the whistle, or otherwise, of the approach of said train, and had carelessly and negligently cut the steam off, so that the train was running noiselessly onto and upon said crossing; that the negligence of the defendant as alleged was the proximate cause of the injury and death of Pennington. It was further alleged that Pennington sustained his injuries without any fault or negligence on his part. The remaining allegations related to the age, occupation, character, and earnings of the deceased.

The defendant, on September 30, 1913, filed its answer, consisting of a general denial and a special denial, sufficient, under the provisions of chapter 127, Acts of the 33d Legislature (Reg. Sess.), to put in issue each allegation of the petition, and then pleaded that the train was operated in the usual and customary manner, and at the usual rate of speed; that the crossing was neither a dangerous nor much used one, especially after 6 o'clock p. m.; that, when the train was about 500 to 800 yards west of said crossing, the engineer sounded the whistle for the station, and for the crossing and semaphore board, and the bell was also sounded for the crossing, and each of said warnings could readily have been heard by deceased by the exercise of ordinary care; that the engine had a brilliant headlight, which could have been seen from the crossing a distance of more than a mile, and at the time deceased approached the crossing the light from said headlight was reflected from the ground at the crossing and buildings and cars near the crossing, and was plainly to be seen, and, if he did not see this, he could have done so by the exercise of slight care; that the train was making the usual and customary noises of a large and heavy passenger train, which could have been heard for several hundred yards before it reached the crossing by listening with ordinary care, which precaution deceased did not take, or, if he listened, failed to heed what he heard and took the chances of getting across ahead of the train; that the view of the main line track to the westward was not obstructed by cars or other objects, except partially, and for a comparatively short distance near the crossing, and from his position as he approached the track, and at the proper times and places to look before going on the track, deceased could have, without difficulty, seen the train in ample time to have avoided it, in fact the train was in view of deceased's position for 100 feet or more as he drove to the crossing, and he must have seen same, or by the exercise of slight diligence could have seen it, in ample time before driving on the crossing, but he negligently failed to do so, or else did not heed what he saw; that, if the view of the track was obstructed, then deceased could have readily heard the train and the signals and alarms given by it, and, if the rattle of the wagon and harness or anything else interfered with his hearing, could, with little inconvenience, have stopped, before going upon the crossing, at a place where he could see the track to the westward, and by so doing and looking and listening he could, without difficulty, and by the exercise of ordinary care, have both heard and seen the train and avoided the accident, all of which, under such circumstances, a person of ordinary care would have done, and which deceased failed to do, and, if he looked and listened, he failed to heed what he saw; that as a matter of fact deceased was riding one animal of six or eight hitched to two or more wagons, and the rattling of wagons and harness made much noise, which interfered with his hearing to some extent, and he deliberately and negligently drove upon the crossing directly in front of the train, without stopping to look and listen, and without looking or listening for an approaching train, and without exercising ordinary care and caution in any respect, when, by the exercise of any of these precautions or any other precautions such as a person of ordinary care would have exercised, he could have discovered the train in ample time to have avoided it; that in each of said matters deceased was guilty of negligence which caused or contributed to his death.

No replication was filed by plaintiffs. The trial resulted in a verdict and judgment against appellant for $20,000, as follows: Mrs. Pennington $8,000; each child $3,000; the parents nothing.

By the first assignment of error complaint is made because the court refused to give a peremptory instruction to find for defendant. The first proposition asserts that the charge should have been given because of the failure of plaintiff to deny the allegations relied upon to show contributory negligence. An examination of the pleadings discloses that almost all of the facts alleged by appellant as its basis for claiming that Pennington was guilty of contributory negligence were directly controverted in the petition, and issue was fully joined thereon. The allegation with respect to the headlight being reflected from the ground at the crossing and buildings and cars near the crossing, and that it was plainly to be seen, is a new matter not contradicted in the petition. Issue was joined as to whether the train was visible by a person approaching the crossing, and as to whether it made a great noise, and whether the signals were given. The failure to stop, look, and listen cannot be said to show contributory negligence when disconnected from the allegations which are in issue. It was admitted that the train was delayed, and there was nothing to particularly put Pennington on guard, unless it was the reflection from the headlight. We do not think failure to see or be warned by the reflection, there being no allegation that it was the only headlight casting a reflection upon the crossing, or facts showing that Pennington could not in the exercise of ordinary care have taken it for the reflection of a headlight from an engine attached to some of the...