Gulf, C. & S. F. Ry. Co. v. Breitling

• Decision Date: 10 January 1890
• Citation: 12 S.W. 1121
• Parties: GULF, C. & S. F. RY. CO. <I>v.</I> BREITLING.
• Court: Texas Supreme Court

12 S.W. 1121

GULF, C. & S. F. RY. CO.

v. BREITLING.

Supreme Court of Texas.

January 10, 1890.

Appeal from district court, Harris county; MASTERSON, Judge.

Action by Mary Breitling against the Gulf, Colorado & Santa Fe Railway Company for personal injuries. The company appeals from a judgment for the plaintiff. Rev. St. Tex. 1879, art. 4232, provides that "a bell of at least 30 pounds weight or a steam-whistle shall be placed on each locomotive engine, and the bell shall be rung or the whistle blown at the distance of at least 80 rods from the place where the railroad shall cross any road or street, and to be kept ringing or blowing until it shall have crossed such road or street, or stopped, under a penalty of fifty dollars for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informer, and the other half to the state, and also be liable for all damage which shall be sustained by any person by reason of such neglect."

Jones & Garnett, for appellant. Goldthwaite & Ewing, for appellee.

STAYTON, C. J.

The evidence shows that appellee was injured while attempting to cross a street in the city of Houston over which appellant's railway runs; that there were several tracks in the street, all of which, perhaps, but one, on which the moving train was, were occupied by standing freight-cars, which cut off the view of one approaching the street crossing to the right or left until within a few feet of the track on which the moving train was. The evidence is conflicting as to the extent of street crossing not occupied by freight-cars, as is it whether a bell was ringing or whistle blowing as the moving train approached the street crossing. The evidence is also conflicting as to the rate of speed at which the train was moving at the time of the accident; some witnesses estimating the speed as high as 12 or 15 miles per hour, while an ordinance of the city forbade the running of trains at a speed greater than 6 miles per hour. The evidence for appellee shows that, after having exercised due care to ascertain whether a train was approaching the street crossing, she drove upon it, ignorant of the approach of a train, but that when within a few feet of the track on which the train was moving it came rapidly from behind the standing freight-cars, when, to avoid contact with it, she checked the horse she was driving, which, however, was so near to the moving train that it became frightened, and backed the vehicle in...