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

• Decision Date: 18 February 1890
• Citation: 13 S.W. 196
• Parties: GULF, C. & S. F. RY. CO. <I>v.</I> ANDERSON.
• Court: Texas Supreme Court

13 S.W. 196

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

v. ANDERSON.

Supreme Court of Texas.

February 18, 1890.

Appeal from district court, Galveston county.

J. W. Terry, for appellant. John Lovejoy and Wheeler & Rhodes, for appellee.

HENRY, J.

The petition charges that heretofore, to-wit, on the 29th day of August, A. D. 1888, and prior and subsequent thereto, defendant, as a common carrier of freight and passengers, was engaged in running and operating coaches, passenger and freight trains, drawn by locomotives, operated and propelled by steam, on and along avenue A, in the city and county of Galveston, and across Twenty-Seventh street, in said city, and at and upon the said Twenty-Seventh street, on said Avenue A, and the intersection of said streets in said city; the said Avenue A and Twenty-Seventh streets, and the crossing and intersection thereof, being a public street and thoroughfare, in constant and daily use by the public, and one of the most generally used streets in said city, the same being within the corporate limits thereof. That on the day and date last aforesaid, while plaintiff was engaged in the lawful pursuit of his business, and while in so doing he was walking along the said public street and said highway, to-wit, Twenty-Seventh and across said avenue A, and the crossing thereof, and while upon the crossing at intersection of said public streets, he was run down or run into and struck with great force by one of the locomotives of said defendant, drawing a train of cars at great speed on said avenue A, and across said Twenty-Seventh street, greatly wounding and bruising him, and injuring plaintiff, and so crippling him as to render him sick and weak for the remainder of his life. That the front of said engine struck plaintiff on the back and right side, and on the back of his head and neck, and so bruising his head and body, and so injuring his spine, and so shocking his nervous system, and so bruising his back and whole body, as to seriously affect his back, his spine, right side, head, and neck as not only to weaken his whole body and destroy his physical health, but also to greatly affect and impair his mind, and cause him great distress, physical and mental anguish, and to such an extent as to prevent his doing any work or pursuing his avocation, that of a cotton screwman and stevedore, or to attend to any business whatever. That plaintiff, at the time of said injury, was about 44 years of age, a strong and able-bodied man, and had been so for years thereto, and for many years had been steadily employed and earning the sum of $100 per month, by which he was enabled to support himself and family, consisting of a wife and five children. That since the said injury plaintiff has been incapable of earning anything or doing any work whatever, and is a cripple for life, and will be a sufferer the balance of his life. That the ordinances of the city of Galveston, and especially and particularly section 3, art. 3, of the Revised Ordinances of the City of Galveston, provide that it shall be unlawful to run a steam-engine or any railroad within its city limits at a greater speed than four miles per hour. Plaintiff avers that on the day and date last aforesaid persons approaching or crossing the said avenue A or Twenty-Seventh street were prevented from seeing whether locomotives or trains were approaching from the west by reason of the fact that a long line of freight-cars were kept standing on a side track, and parallel with, and within a few feet of, the main track, and the one upon which plaintiff was struck. Plaintiff avers that notwithstanding the premises aforesaid, and notwithstanding the law of the state of Texas in reference to a warning bell or whistle, and notwithstanding the ordinances of the city of Galveston, on the said day and date the said defendant, without warning or notice, by bell or whistle, or any other mode or manner, with great force and violence, and at great speed, to-wit, the rate of twenty miles per hour or more, without having a competent flagman to give notice of approaching trains as required by law, and as was the custom of defendants, ran into and upon and ran down plaintiff, no opportunity having been given him of escaping, injuring him as aforesaid; all of which occurred without fault or negligence on the part of the plaintiff, but through the negligence, carelessness, and unlawful and improper conduct of said defendant, its servants and its agents. The defendant answered by a general denial, and alleged specially that the plaintiff, had he looked or listened for the approaching train, which he could have done, would have discovered the same in time to have avoided the accident; and, further, that the plaintiff was not struck on the crossing at the intersection of avenue A and Twenty-Seventh street, but that he was struck some distance east of Twenty-Seventh street crossing, while carelessly and negligently walking on the trestle-work or bridge, upon which the railroad track was constructed, and which was not intended to be used for the purposes of foot travel, and that he failed to exercise any care to learn of the approaching train. The case was tried before a jury, and there was a verdict and judgment in favor of plaintiff for $6,000.

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