Goolsbee v. Texas & N. O. R. Co.

• Decision Date: 22 November 1950
• Docket Number: No. A-2641,A-2641
• Citation: 234 S.W.2d 407,149 Tex. 445
• Parties: GOOLSBEE v. TEXAS & NEW ORLEANS R. CO.
• Court: Texas Supreme Court

Page 407

234 S.W.2d 407

149 Tex. 445

GOOLSBEE v. TEXAS & NEW ORLEANS R. CO.

No. A-2641.

Supreme Court of Texas.

Nov. 22, 1950.

Rehearing Denied Dec. 20, 1950.

Combs, Brown & Brock, Houston, for petitioner.

Baker, Botts, Andrews & Parish, J. Curtiss Brown, and Raymond L. McDermott, all of Houston, for respondent.

SHARP, Justice.

The question presented here is whether the Court of Civil Appeals correctly held that, as a matter of law, petitioner was not entitled to recover any damages in this suit.

Addison Goolsbee filed this suit against the Texas & New Orleans Railroad Company for personal injuries sustained by him, due to the alleged negligence of the employees of the Texas & New Orleans Railroad Company. Based upon the answers of the jury to the special issues submitted, the trial court entered judgment for Goolsbee in the sum of $22,500. Upon the filing of a motion for new trial, the trial court ordered that a new trial would be granted unless Goolsbee filed a remittitur of $8,000. The remittitur was filed under protest, and judgment was entered in favor of Goolsbee in the sum of $14,500. An appeal was taken to the Court of Civil Appeals, and that court reversed the judgment of the trial court and rendered judgment in favor of respondent. 228 S.W.2d 280.

Petitioner alleged that at the time he sustained his injuries he was a locomotive fireman, engaged in operating trains and switch engines, as an employee of Port Terminal Railway Association; that he sought recovery of damages for personal injuries sustained by him when he jumped from a Port Terminal Railway Association train, on which he was the fireman, because of his fear of an impending collision between his train and a train being negligently operated by the employees of the Texas & New Orleans Railroad Company; that because of such negligence the engineer on the train with petitioner thought a crash was imminent and pulled the emergency brakes and attempted to get off the engine; that petitioner knew that his train was approaching the Texas & New Orleans Railroad Company crossing, and that from the actions of the engineer and the look of fear on his face petitioner knew that a certain crash was imminent, although he neither saw nor heard the approaching train; and that petitioner jumped from his cab window, and suffered a broken leg.

At the time of his injuries petitioner was firing on a lead engine which was coupled to another engine, and the two were backing up, pulling a string of 55 freight cars, with petitioner's engine in the lead, and the speed of the train at the time of the accident was five or six miles per hour. They were working near the Houston Ship Channel, and were approaching a point where the tracks of the Port Terminal Railway Association and the Texas & New Orleans Railroad Company crossed. As petitioner's train approached the crossing, going in a northwesterly direction, one of respondent's freight trains, consisting of an engine and 21 cars, approached from the west, going in an easterly direction. Since the engine on which petitioner was working was backing, this placed the engineer on the side next to respondent's train, and petitioner was on the other side, where he could not see that train. Petitioner was well acquainted with the crossing and his proximity to it at that time. Although petitioner's train had the right of way, respondent's train approached at a 'good rate of speed,' working steam and 'puffing out the stack,' in such a way as to cause the engineer to become alarmed and take steps to leave the engine.

There was evidence to the effect that as the engineer of respondent's train neared the crossing, he did not reduce speed, and it looked as if he would not be able to stop in time to avoid a collision. The evidence further shows that the engineer on the same engine with petitioner, thinking that the other train was not going to stop, threw his brakes into emergency, jumped down off his seat, and went to the gangway between the engine and the tender and began tugging at the storm curtains in an attempt to get off. Petitioner could not actually see respondent's train from his position on the fireman's seat, but he knew of its presence, and realized that his own train was almost on the crossing and could not be stopped before reaching it. In view of these facts petitioner thought that a collision was imminent, and, following the engineer's example, he slipped over the sill of his window and dropped to the right of way, sustaining a broken leg. A few moments later, while lying on the ground, attempting to crawl out of danger, petitioner looked between the wheels of his engine and saw that the other train had stopped. Measurements showed that the train had stopped about twenty feet short of the...