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

• Decision Date: 08 May 1915
• Docket Number: (No. 8191.)
• Citation: 178 S.W. 615
• Parties: GULF, C. & S. F. RY. CO. v. SULLIVAN.
• Court: Texas Court of Appeals

178 S.W. 615

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

(No. 8191.)

Court of Civil Appeals of Texas. Ft. Worth.

May 8, 1915.

Appeal from District Court, Denton County; C. F. Spencer, Judge.

Action by Lloyd Sullivan, by next friend, against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See, also, 168 S. W. 473.

Lee & Lomax, of Ft. Worth, Robert H. Hopkins, of Denton, and Terry, Cavin & Mills, of Galveston, for appellant. Owsley & Owsley, of Denton, and J. W. Koons, of Sanger, for appellee.

CONNER, C. J.

Appellee recovered a verdict and judgment for $6,500 as damages for personal injuries, and the defendant has appealed.

Briefly stated, it was alleged, and appellee's evidence is in substantial correspondence with the allegations, that on May 19, 1913, appellee visited the depot in the town of Sanger in Denton county. The main line of the appellant's railway extends through the town of Sanger, north and south. The depot is situated on the west side of the main line. West of the depot a switch track, or, as it is termed in the evidence, a house track, also extends in a north and south direction. One of the streets of the town just north of the depot extends east and west at right angles with these two railway tracks. Appellee alleged that he was directed by the agent at the depot to leave, and that he did so with the purpose of going to his home, which was in a northwesterly direction from the depot; that he went out of the depot upon its eastern side and traveled north until he reached the street mentioned, when he found that it was obstructed by a train of cars to the west on the house track that was being switched at the time; that he thereupon continued in a northerly direction until he reached a coal bin situated on the east side of the house track and within a few feet of it; that on the opposite side of the track and a little to the north of the coal bin there was located some stock pens, in front of which was standing a stock car that it seems had been placed there for the reception of some horses about to be shipped; that he stopped at the northwest corner of the coal bin a few moments and then concluded to continue his journey, but before doing so he looked to the south and saw that the switch engine and cars attached thereto were south of the depot; that he then continued and undertook to cross the house track just north of the stock car standing in front of the stock pens; that the point at which he so undertook to cross the house track was traversed by a well-worn pathway that had been long used by residents of the town, situated in a northwesterly direction from the stock pens, and in the vicinity of his home in coming to and from the depot, and to and from a water tank also situated near the coal bin; that while he was so endeavoring to cross the track, and while on the track the switch train from the south propelled the cars attached to the engine northward and against the standing stock car, which thus was projected against and over him, inflicting the serious injuries described in his petition. It was alleged, and there was evidence tending to show, that there was no brakeman or other person stationed upon the switch train, or upon the standing stock car, to give warning to persons about to cross the track. It was further alleged that neither whistle nor bell was sounded by the switch train to give warning of its approach to persons about to cross the house track, and it was charged that the defendant railway company was guilty of negligence in these respects.

The pleadings of plaintiff were met by exceptions, by a general denial, and, among other things, by a special plea of contributory negligence on the part of the plaintiff in attempting to cross the track at the time and under the circumstances he did. The trial, however, resulted in a verdict in appellee's favor, as before stated.

Among other things, it appeared in the evidence that one of appellant's brakemen was in close proximity to the scene of the accident, and on a former appeal in this case a judgment in appellee's favor was reversed on the ground that the evidence did not warrant a recovery in his favor upon the issue of discovered peril, upon which issue alone the case was then submitted. See 168 S. W. 473. On the last trial the issue of discovered peril was not submitted; the submission being upon the issues of negligence and contributory negligence hereinbefore indicated.

Appellant in various forms attacks the sufficiency of the evidence to authorize a submission of the issues, or to sustain the verdict in appellee's favor, but in view of the fact that we have concluded that the judgment must be again reversed, we deem it improper to discuss the sufficiency of the evidence further than to say that we do not think it was such, on either the issues of defendant's liability or of plaintiff's contributory negligence, as to have required the peremptory instruction to find in appellant's favor, as was requested.

It will be remembered that the plaintiff alleged as a reason for not having gone from the depot along and over the public street extending east and west immediately north of the depot into the town of Sanger and in the direction of plaintiff's home that it was obstructed by a train of cars that was being switched at the time. This allegation, was specially denied by the defendant, and on the trial, the plaintiff having testified in accordance with his allegations, the defendant introduced its witness Gambill, who testified to the effect that at the time the plaintiff, Lloyd Sullivan, came out of the defendant's depot, the crossing north of such depot was not blocked or obstructed by any cars, and that the plaintiff, had he desired to do so, could have gone home by crossing defendant's house track at such place. Thereafter the plaintiff in rebuttal introduced the answer of the witness to cross-interrogatory No. 1, to the effect that at a prior term of court when the case was tried he was present, but was not used as a witness. The defendant, as shown by the bill of exception, thereupon offered to prove, and could have proved, that on the former trial the court had indicated his purpose to submit the case upon the issue of discovered peril alone, and hence that the witness Gambill was not tendered at that trial, for the reason that in the judgment of defendant's counsel his testimony was not material on the only issue which the court proposed to submit to the jury. Such tendered proof on the part of defendant was objected to by the plaintiff on the ground that it was "wholly irrelevant and immaterial," which objection was by the court...