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

• Decision Date: 15 January 1913
• Citation: 153 S.W. 694
• Parties: GRUBB v. GALVESTON, H. & S. A. RY. CO.
• Court: Texas Court of Appeals

153 S.W. 694

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

Court of Civil Appeals of Texas. San Antonio.

January 15, 1913.

Rehearing Denied February 12, 1913.

Appeal from District Court, Bexar County; Claude V. Birkhead, Judge.

Action by W. J. Grubb against the Galveston, Harrisburg & San Antonio Railway Company. From judgment for defendant on directed verdict, plaintiff appeals. Affirmed.

J. R. Norton and James Routledge, both of San Antonio, for appellant. Baker, Botts, Parker & Garwood, of Houston, Templeton, Brooks, Napier & Ogden and W. F. Ezell, all of San Antonio, for appellee.

FLY, C. J.

This is a suit for damages arising from a wound inflicted by a train guard upon appellant, which was instituted by appellant, a minor, by his next friend, against appellee. It was alleged that appellant and another person were standing at appellee's depot in Glidden, Tex., while a passenger train of appellee was standing at said depot, and as the train moved away from the station in an easterly direction an agent, who had been placed by appellee on the train to prevent robbery of it, fired a pistol and shot appellant in the leg. The cause was tried by jury, and a verdict for the appellee was instructed by the court, and, upon the verdict returned in compliance with the instruction, the judgment was rendered from which this appeal has been perfected. The only question is, Was there any evidence upon which the cause should have been submitted? If there was, the judgment should be reversed; but, if not, it should be affirmed. This requires close consideration of all the evidence for appellant.

On May 30, 1911, appellant and Richmond Nelms, his companion, rode in a box car over the railway line of appellee from San Antonio to Glidden, Tex. They rode in the box car without the consent of appellee. They arrived at Glidden about 8 p. m. and lingered about the station until about 2:30 a. m. of May 31st, when the regular passenger train en route from San Antonio to Houston arrived. Appellant stated that he and his companion were merely waiting at Glidden for another freight train on which to steal a further ride to Houston. He claimed to have spent his stay in Glidden in eating and talking to Jim Kearns, an employé of appellee. When the passenger train came in, appellant and Nelms walked from the lunchroom of the station, which is on the south side of the track, which, of course, runs east and west, and walked to a point near a pile of sand, called a "bumper" by appellant, at the end of a spur or side track, and stood there facing the train. They were 15 or 20 steps west of the depot. They were standing at that point when the train came in, directly south of the vestibule of two cars, which were sleeping coaches, and remained there the whole time the train was in Glidden, which was about five minutes. Appellant gave this account of the shooting:

"At the time the train came in, my back was to this bumper, as I call it. I was facing the train. I was facing north; and after I arrived at this bumper it wasn't but a minute or so before the passenger train which I spoke of came into the yard and came up to the depot; it wasn't very long. When the train arrived, I didn't do anything; never moved at all; remained in the same position. With reference to what part of the train stopped opposite where I was standing with reference to the head end, why, mostly to the rear, two or three coaches. We were immediately opposite the vestibule or platform where two of the cars join together. There was some one on the platform, and this person looked at us very hard. The train remained at the station a short time; I don't know exactly how long; and during that time the person that was on the platform was in the same position all the time. Yes, sir; I looked at that person on the platform; he was on the rear platform of the car, nearest to the west. After the train had stood there, it pulled away from the depot, and at the time it pulled away I didn't do anything. I kept my eye on the man that was watching me. I never moved from the position occupied by me. As the train pulled out, the man did nothing. As that train pulled out, I was standing in the same position as I was when the train pulled in. I noticed this man looking very peculiarly at me, and I followed him up with my eyesight as the train pulled out. When he got a certain distance up in front of the depot, the flash of a pistol came from him, and I was shot. The train had moved about 30 steps, with reference to the position where it was standing at the time it started, at the time I was shot." He identified the man who shot him as Sisk, who was employed by appellee as a guard to protect the passenger trains from thieves, who were in the habit of stealing the personal property of passengers through the windows, when trains were stopped at stations and water tanks.

Appellant testified that the platform was lighted, so that all the movements of himself and companion could be plainly seen by Sisk. He stated: "The light was shining around there, so there was no trouble for him to see; no trouble for him to see what we were doing; that we were just simply standing there. We were doing nothing at all, except rolling a cigarette; both of us were rolling a smoke, I think; I don't know whether it was lit or not; standing there rolling a cigarette, Nelms and I both; that is all we were doing. From the time we stopped there at that box or bumping post up until the shot was fired, all we did was simply to stand there and look at this fellow and roll a cigarette. * * * When the train started to pull out, neither Nelms nor myself started out towards the train. * * * After the train had pulled a little ways up, I saw him motion with his arm, and the flash of the gun; just his arm move, and saw a flash. He raised his arm from his side; I don't know whether he got it in his pocket or not; raised it from his side. He did not have a pistol in his hand when standing there in front of us. That train moved 25 or 30 yards, I guess, yards or steps, about a car and a half length, before I saw a motion with his hands." He stated that the man had passed the station, and was east of it, when he fired the shot, and swore: "I kept my eye on him from the time the train stopped until he fired the shot. I could see he was shooting directly at me. I could see he was watching me all the time from the time the train stopped until he fired the shot. I kept my eyes on him, and he kept his eyes on me, all the time from the time the train stopped until the shot was fired." He reiterated that the place was well lighted, and that he was perfectly visible to anybody about the place.

Nelms, the only witness who corroborated appellant's statements as to the shooting, contradicted him in several material particulars. He swore that Sisk was east of where they were standing; that they passed him as they went along the train; that he alighted from the train after they reached the place where they stopped; and that he stood there and stared at them, and when the train started got on again. He stated the train had moved far enough for the rear end of it to be opposite them before the shot was fired.

The case of appellant rested on his testimony and that of Nelms. The other testimony tended to contradict all of their statements.

Sisk swore that he was on the train to prevent the depredations of thieves; that he had no knowledge of any one having been shot at Glidden until some time afterward; that he opened the door of the vestibule on the north side of the car opposite the station, and looked out to protect the cars from thieves; that he was not on the south side of the car, and did not open the vestibule door on that side; that he saw no one but a negro; that he heard a shot fired on the north side of the train; and that he did not fire it. He stated that he had his pistol in his hand while standing on the steps of the vestibule on account of the presence of the negro, who, he thought, might wish to enter a car; that no theft from a train ever occurred on the side next to a station, but always on the opposite side, and consequently that was the only side he watched. Lovelady, an engineer, testified that he was riding as a passenger in the cab of the engine on the night of the shooting; that he saw the flash and heard the report of a shot, just as the train pulled out of Glidden, on the north side of the train. All of the employés on the train contradicted every material statement made by appellant and Nelms, and the testimony strongly preponderated against the truth of their statement. Their testimony is also surrounded with an atmosphere of improbability. However, for purposes of this appeal, it must be taken as true, in view of an instructed verdict; and, while they were clearly trespassers on the property, because avowedly there to defraud the appellee and commit a crime (article 1531, Rev. Crim. Stats. 1911), still, as they were not attempting to commit it at the time, the guard was not justified in shooting at them. Articles 112 and 113, Crim. Stats.

The testimony does not present any issue as to the shot having been fired to prevent any illegal attempt to take or injure property in the possession of appellee; for, if the testimony of appellant and Nelms be true, they were doing nothing at the time the shot was fired to indicate any purpose whatever to take or injure any property, but were absolutely doing nothing but rolling cigarettes. There was nothing in their action to indicate to any one that they intended to attack or board the train at the time the shot was fired, because they were perfectly still, making no movement toward the train, which had passed them, and they could not, if they had desired, have committed any depredations upon it. The shot was consequently fired with wantonness, with an utter disregard of human life and a profound contempt for the laws of the state. It sprung from a condition of mind that...