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

• Decision Date: 11 December 1914
• Docket Number: (No. 6706.)
• Citation: 173 S.W. 482
• Parties: GULF, C. & S. F. RY. CO. v. HIGGINBOTHAM et al.
• Court: Texas Court of Appeals

173 S.W. 482

GULF, C. & S. F. RY. CO. v. HIGGINBOTHAM et al.

(No. 6706.)

Court of Civil Appeals of Texas. Galveston.

December 11, 1914.

Rehearing Denied January 7, 1915.

Appeal from District Court, Liberty County; J. Llewellyn, Judge.

Action by Mrs. Josie Higginbotham and others against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Terry, Cavin & Mills, of Galveston, F. J. & C. T. Duff, of Beaumont, and Stevens & Stevens, of Liberty, for appellant. John Lovejoy, Presley K. Ewing, and L. E. Blankenbecker, all of Houston, and Marshall & Harrison, of Liberty, for appellees.

PLEASANTS, C. J.

This suit was brought by the widow, children, and mother of A. J. Higginbotham against the appellant to recover damages resulting from the death of said A. J. Higginbotham, which it is alleged was caused by the negligence of appellant's servants operating one of its trains. The petition alleges:

"That on July 8, 1910, A. J. Higginbotham was engaged in contract work for Liberty county and that at the particular time in question he was engaged in work on the Liberty and Livingston road at a point where said road is crossed by the defendant railway company. That on the date above set forth two horses owned by A. J. Higginbotham were grazing lose, trailing ropes, and wandered upon the track of the defendant company near the public crossing. That the deceased, A. J. Higginbotham, went upon the track for the purpose of getting his horses and removing them therefrom. That, while said Higginbotham was engaged in removing his horses from the track, a train of the defendant company, rapidly approaching from the west, and going in an easterly direction, and running at an excessive rate of speed, to wit, 50 miles per hour, and without giving any warning by bell or whistle, when within a distance of 80 rods from the crossing and without keeping any reasonable lookout to avoid injuring those persons who might be on the track at such time and place, and after discovering the danger of the said Higginbotham, ran against, knocked down, and ran over him, injuring him to such an extent that he died from the effects of said injuries. * * * That the injuries and death of the said A. J. Higginbotham were caused by the negligence of the defendant, acting through its agents and servants, in failing to use ordinary or reasonable care and caution to keep a reasonable lookout for and discover persons who might be upon the track, and in negligently running said train on, near, and across said public road at a rate of speed that was excessive and dangerous, and in negligently failing to give the warning required in such cases, or an adequate warning of the approach of the train by whistle or bell, and in negligently failing, after discovering the said A. J. Higginbotham's situation of peril, to use all reasonable means at command consistent with the safety of the train to avoid injuring him, and that said acts and omissions, severally and collectively, were the proximate cause of the injury and death of the said Higginbotham."

Damages were claimed in the sum of $30,000.

Defendant answered by general demurrer and special exception to the petition on the ground that the facts alleged in the petition show that the deceased was guilty of contributory negligence, as a matter of law, in going upon and remaining on defendant's track until struck by the approaching train. The answer denied generally and specially each and all of the allegations of negligence alleged in the petition, and specially pleaded that the death of said Higginbotham was caused by his own negligence in going and remaining upon defendant's track under the circumstances alleged in the petition.

The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiffs for the sum of $15,000, apportioned by the jury as follows: $8,000 to the widow, Josie Higginbotham; $5,000 to the minor child, Lemuel Higginbotham; and $2,000 to the mother, Mrs. Marie Lackey.

This is the second appeal of this case. On the trial from which the first appeal was taken, the trial court instructed the jury to return a verdict for the defendant. This court on that appeal reversed the judgment of the lower court on the ground that the evidence raised the issue of discovered peril and that issue should have been submitted to the jury. Vide Higginbotham v. Railway Co., 155 S. W. 1025. Upon the trial from which appeal is prosecuted, the trial judge, in conformity with the views expressed by this court upon the former appeal, instructed the jury, in substance, that the deceased was guilty of contributory negligence in going and remaining upon defendant's track in the circumstances shown by the evidence, and plaintiffs were not entitled to recover unless the jury believed from the evidence that the operatives of the train which struck and killed the deceased saw and realized his peril in time to have avoided striking him by using all the means in their power consistent with the safety of those upon the train and failed to use such means.

The evidence upon this trial was practically the same as upon the former trial, with the addition of the testimony of the engineer of the train, who did not testify upon the former trial; no testimony having been introduced on that trial by the defendant. Without setting out the testimony in detail, it is sufficient to say that it justifies the following fact conclusions:

The deceased, A. J. Higginbotham, was struck and killed by a train of defendant company while upon the track of defendant for the purpose of driving two horses belonging to him from the track and preventing them from being struck by the approaching train. When he went upon the track to drive the horses therefrom, he knew the train was coming, as he had heard it whistle for a station a mile and a half distant, but at that time it was not in sight. He had some difficulty in getting and keeping the horses from the track, and while he was absorbed in this undertaking, fighting or waving the horses from the track, and not looking in the direction of the train, which was approaching at a rate of speed variously estimated by the witnesses at from 25 to 45 miles an hour, he was struck by the train and received injuries which caused his death. After the train which was approaching from the west passed a curve in the track about three-fourths of a mile west of the place at which the deceased went upon the track, there was nothing to prevent the operatives of the train from seeing the deceased and observing what he was doing on the track and the trouble he was having in driving and keeping the horses therefrom. The track was perfectly straight, and there was no obstruction of the view from the curve to the place at which deceased was struck. No effort was made by the operatives of the train to stop it or to lessen its speed, and no warning signals were given the deceased until the train was almost upon him. The train was properly equipped with air brakes, and could have been stopped in a distance of 450 feet if it was going at the rate of 45 miles an hour, and in 350 feet if the rate was not more than 35 miles an hour. The engineer testified, in substance, that he was in his proper position on his engine with his hand on the throttle when he came around the curve before striking the deceased, and that if deceased had been on the track at that time he would have seen him; that when he first saw the deceased on the track the train was within 100 feet of him; and that he immediately applied the emergency brakes and blew the whistle, but it was not possible to stop the train in time to avoid striking the deceased. He further testified:

"When I saw him (deceased), I realized he was in a position of danger. * * * I did not know whether Mr. Higginbotham was going to get off the track or not. I thought that, because I thought he was excited when he first came on the track. I thought it when he first came on the track. He went towards the north side of the track as if he was going to finally get off, but he never did make a move as if to get off in a hurry."

The first assignment of error complains of the refusal of the court to instruct the jury to return a verdict for the defendant, on the ground "that the undisputed evidence showed no liability on the part of the defendant."

Appellees object to our considering this assignment:

"Because appellant does not show by a bill of exceptions that the particular charge was requested and refused before the argument to the jury, or before the submission of the case to the jury, nor that the action of the court was excepted to at such time, and, such being the case, the assignment is not presented in the manner required by law and should not be considered."

It has been held by most, if not all, of our Courts of Civil Appeals, that under our present statute no objection to the charge given or to the refusal to give requested instructions will be considered on appeal unless the objections are preserved by a proper bill of exceptions. This court has followed and approved this holding in the cases of Railway Co. v. Churchill, 171 S. W. 517, O'Neil Engineering Co. v. City of San Augustine, 171 S. W. 520, and Conn v. Houston Oil Co., 171 S. W. 524, all recently decided and not yet officially reported. In the case last cited, however, we declined to apply the rule to an assignment complaining of the action of the court in giving a peremptory instruction for the defendant.

It seems to us that a complaint of the refusal of the trial court to instruct a verdict for defendant on the ground that the undisputed evidence showed no liability on the part of the defendant is but another way of saying that the verdict rendered for the plaintiffs is without any evidence to support it. The fact that the trial court submitted the case to the jury without objection on the part of the defendant would not justify ...