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

• Decision Date: 17 February 1904
• Citation: 80 S.W. 133
• Parties: GULF, C. & S. F. RY. CO. v. HALL et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 133

80 S.W. 133

GULF, C. & S. F. RY. CO. v. HALL et al.^*

Court of Civil Appeals of Texas.

February 17, 1904.

Error from District Court, McLennan County; M. Surratt, Judge.

Action by C. B. Hall, for himself and as next friend of Charles Hall, against the Gulf, Colorado & Santa Fé Railway Company. From a judgment in favor of plaintiff, defendant brings error. Reversed.

See 76 S. W. 590.

J. W. Terry and Ballinger Mills, for plaintiff in error. T. A. Blair and H. N. Atkinson, for defendants in error.

FISHER, C. J.

C. B. Hall sued the plaintiff in error for himself and as next friend of his minor son, Charles Hall, to recover for personal injuries sustained by Charles Hall, whose foot was crushed and mangled by a car in one of plaintiff in error's trains at a public crossing in the town of McGregor. The court, on the verdict of the jury, rendered judgment against the plaintiff in error for Charles Hall in the sum of $2,500, and for C. B. Hall in the sum of $500. The defendant pleaded contributory negligence upon the part of Charles Hall.

The plaintiff's petition substantially alleged that Charles Hall was run over and injured at the College street crossing in the town of McGregor by one of plaintiff in error's freight trains, which in backing up ran over him and caused the injuries he sustained. The grounds of negligence alleged are, substantially, that a part of the train was left north of the crossing, and the main part proceeded south of the crossing, and thereafter, while Charles Hall was crossing the track, the main part of the train, to which the locomotive was attached, suddenly, and without warning, backed up across the College street crossing; that the employés operating the train negligently handled the same, in that they did not ring the bell nor blow the whistle, nor give any warning that they were about to pass over the street.

Plaintiff in error's first and second assignments of error complain of the action of the court in overruling the motion for new trial on the ground that the verdict is contrary to the evidence, and not supported by the evidence, in that Charles Hall was not injured by defendant as alleged by him, and because it is shown that at the time of his injuries he was wrongfully attempting to board one of plaintiff in error's freight cars while the same was in motion, and thereby was guilty of contributory negligence. Without going into a discussion of the facts raised by these assignments, we are of the opinion that the evidence was sufficient to support the verdict. The evidence of the plaintiff and some of his witnesses is substantially to the effect that he was injured in the manner and at the time and place as stated, and that the defendant was guilty of the negligence alleged in the petition, and that Charles Hall was not attempting to board one of plaintiff in error's cars at the time he received his injuries.

We overrule the plaintiff in error's ninth assignment of error. We think, under the pleadings and facts in the record, the court correctly placed the burden of proof of contributory negligence upon the plaintiff in error.

Plaintiff in error's twelfth assignment of error, as stated in its brief, but original assignment No. 14, as shown in the record, is overruled; and there was no error in refusing the charge requested. This charge, as requested, leaves out of view the theory of the plaintiffs' case, and which is sustained by the evidence, to the effect that at the time he was injured he was on the public crossing of College street; and, if such is the case, he had the right to be there, and he would not be a trespasser. This charge is predicated upon the idea that the mere intention of one to board a moving car, when not a passenger, would constitute him a trespasser, and would charge him with contributory negligence, and, if injured, no liability would result, unless in a case where, before the injury was sustained, his perilous position, if any, was discovered by the employés operating the train. The charge assumes that the injured party would be a trespasser if his intention was to board one of the cars. The purpose of the charge is to give the same effect to the mere intention to board the cars as if such purpose had been executed, or the attempt to board had been actually made. If Charles Hall approached the track with a view of boarding the cars, but made no effort to execute such intention, and he at the time was at a public crossing, such as is shown to be the case by his evidence, he could not be charged with contributory negligence, and he would not be a trespasser, as the charge requested in terms states he was. If a party is rightfully at a public crossing, a mere intention to board one of the passing cars would not, in law, necessarily constitute him a trespasser. The charge requested proceeded upon the adverse proposition, and was correctly refused.

The evidence complained of in plaintiff in error's thirteenth assignment of error, as stated in the brief, was admissible. It was in the nature of res gestæ, and the statement made by Charles Hall could be testified to by himself.

There was no error in overruling the objections to interrogatories 8 and 9 and the answers thereto, as stated in the depositions of the witness Isbell. Nor was there any error in overruling the motion to strike out and suppress the depositions of the witness Charles Wright. We are inclined to the opinion that, while the interrogatories propounded to Isbell were leading, there was no abuse of the discretion of the trial court in permitting this character of examination in this instance. The witness, it seems, could not recollect the statement previously made, or what was said by Charles Hall at the time he was discovered injured by Isbell; and the questions were propounded for the purpose of directing his attention to previous statements made by this witness. We are of the opinion that under the waiver stated in the record, the commission was properly issued to take the depositions of the witness Charles Wright. This objection is urged in the plaintiff in error's fifteenth assignment of error, which we overrule.

The court correctly refused to give the charge set out under plaintiff in error's sixteenth assignment of error. The case made by the plaintiff is substantially in accord with the facts alleged in his petition.

The questions raised in the seventeenth assignment of error will be disposed of in passing upon the sixth and seventh assignments of error.

The court, in its charge, in effect instructed the jury that it was the duty of the plaintiff in error, in approaching the crossing, to cause the whistle to be blown or the bell to be rung; and, if the jury believed that there was a failure of duty in this respect, and that thereby the said Charles Hall was injured, then they would find for the plaintiff. In other words, as we construe the charge, it was an attempt to place the duty upon the plaintiff in error in this case to perform the statutory requirements of blowing the whistle and ringing the bell in approaching the public road or street. The statute (article 4507, Rev. St. 1895) makes it the duty of those operating the locomotive of the railway company to blow the whistle and ring the bell at a distance of at least 80 rods from the place where the railroad shall cross any public road or street, and such bell shall be kept ringing until it shall have crossed such public road or stopped. The train in question approached the College street crossing from the north, and left on the north side of the track the caboose and two or three cars, and then continued across the College street crossing south, onto a siding, for the purpose of switching some cars. What evidence there is in the record bearing upon the question as to the distance that the locomotive and the main part of the train went south of the College street crossing tends to show that before the locomotive, with the cars attached, started to return to the College street crossing, it had not reached a point 80 rods distant from the crossing.

The plaintiff in error's third assignment of error complains of the charge upon this subject, because if the train, in approaching the crossing, started at a distance of less than 80 rods, it was not required to cause the whistle to be blown or the bell to be rung, and that, in view of the facts in the record on the subject of...