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

• Decision Date: 14 March 1906
• Citation: 93 S.W. 469
• Parties: GULF, C. & S. F. RY. CO. v. GIBSON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

93 S.W. 469

GULF, C. & S. F. RY. CO. v.GIBSON.^*

Court of Civil Appeals of Texas.

March 14, 1906.

Rehearing Denied May 2, 1906.

Error from District Court, McLennan County; Sam R. Scott, Judge.

Action by H. E. Gibson against the Gulf, Colorado & Santa Fé Railway Company.There was a judgment for plaintiff, and defendant brings error.Affirmed.

J. W. Terry and A. H. Culwell, for plaintiff in error.W. B. Carrington and Eugene Williams, for defendant in error.

KEY, J.

On the 21st day of December, 1896, H. E. Gibson, a boy about 16 years of age, went from his home in the country to the town of Ardmore, in the Indian Territory.According to his testimony, he had never ridden on a railroad, but had seen them before.Having some idle time to be disposed of, he went to the track of the Gulf, Colorado & Santa Fé Railway Company, and, while standing near the same, an engine stopped opposite him and he mounted it, stepping upon what he supposed was the footboard, and started to walk across to the other side, when the engine commenced moving backward.When he reached the other side, he leaned around the corner, and the engineer saw him and ordered him off; the language of the witness being: "The engineer saw me and hollered for me to get off."The boy testified that he did not get off at once, because he could not do so without alighting upon a parallel track; that he turned and went back to the other side, was preparing to jump, caught hold of something, and fell.The engine passed over his lower limbs, maiming him for life.Shortly after the accident, physicians amputated both of his feet.Several months afterwards, and on account of the injury referred to, both legs were again amputated; the physicians finding it necessary to remove more of each than was done by the first operation.On September 8, 1903, this suit was brought to recover damages on account of the injuries referred to.Several acts of negligence were charged in the petition, but the charge of the court eliminated every question, except discovered peril and contributory negligence.The defendant filed a plea to the jurisdiction of the court, and answered by general and special exceptions, general denial, and plea of contributory negligence.There was a jury trial, resulting in a verdict and judgment for the plaintiff for $17,590, and the defendant has brought the case to this court by writ of error.

In writing this opinion, the parties will be designated as they were in the court below; Gibson being the plaintiff, and the railway company the defendant.Under several assignments of error it is contended that the testimony did not raise the issue of discovered peril, and that the court committed error in submitting that issue to the jury, and in not directing a verdict for the defendant, and in overruling the motion for a new trial.There was testimony tending to show that the engine in question had no footboard on the rear of the tender, where the plaintiff said he got on, and that what he called the footboard was, in fact, the brake beam.And two of defendant's engineers testified that it would have been impossible for a boy 15 or 16 years old, without experience in riding engines, to have stood for any length of time on the brake beam while the engine was running.And one of them stated that the position which the plaintiff stated he occupied on the engine was a dangerous place.The fireman on the engine testified that, if he had known the boy was on the rear of the tender, he would have had the engineer stop the engine and let the boy off; that stopping the engine would have been the proper thing to do under the circumstances.And the engineer, who drove the engine and denied seeing the boy, testified that, if he had known he was there, he would have stopped and put him off.This testimony, in connection with the evidence of the plaintiff, to the effect that the engineer saw him and told him to get off, not only presented the question of discovered peril, but supports the verdict of the jury in favor of the plaintiff on that issue.Railway Co. v. Lankford(Tex. Civ. App.)29 S. W. 935;Railway Co. v. Stone(Tex. Civ. App.)56 S. W. 933;Railway Co. v. Bolton(Tex. Civ. App.)81 S. W. 123, and cases there cited.

Under other assignments it is contended that the court should not have submitted to the jury the issue of contributory negligence on the part of the plaintiff, and should not have charged that the burden of proof rested upon the defendant upon that issue.As a general rule, when a plaintiff seeks to recover solely upon the doctrine of discovered peril, contributory negligence is not available as a defense; but in this case the charge of the court gave the defendant the benefit of that defense, and the court also gave a special instruction, requested by the defendant, submitting that issue to the jury.It is not contended that the court's charge was not properly framed, and we do not think the defendant has any right to complain because that issue was submitted to the jury in the manner that it was.The verdict of the jury involves a finding that the plaintiff was not guilty of contributory negligence after he was ordered to get off the engine, and we are not prepared to hold that such finding is not sustained by testimony.In fact, in all the respects in which the verdict is assailed, we find testimony in the record which supports it.The plaintiff's negligence in getting on the engine would not cut off his right to recover if the engineer discovered him in a perilous condition, and failed to use all available means to prevent the disaster.

The court's charge and the...