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

• Decision Date: 14 April 1897
• Citation: 40 S.W. 608
• Parties: GULF, C. & S. F. RY. CO. v. BROWN.
• Court: Texas Court of Appeals

40 S.W. 608

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

Court of Civil Appeals of Texas.

April 14, 1897.

Appeal from district court, McLennan county; Sam R. Scott, Judge.

Action by B. J. Brown against the Gulf, Colorado & Santa Fé Railway Company. There was judgment on a verdict for plaintiff. A new trial was denied, and defendant appeals. Affirmed.

This is a suit brought by appellee against appellant for personal injuries resulting from a collision of two of appellant's trains near Bellville. The facts are: Plaintiff was a passenger on defendant's passenger train, in the rear coach. The passenger train broke down in the night near Bellville, and stopped on the main track about an hour or more. While so standing near the foot of a long grade, a freight train following down the long grade ran into the rear of the passenger train, causing the injuries to plaintiff for which the suit is brought. It was a dark night, and raining. The freight train consisted of 17 cars,—a mixed train, loaded with stone and other freight. The track was slippery. This train was hard to control, on account of the grade and the slippery condition of the track. The engineer of the freight passed a flagman sent out from the passenger train about half a mile from the latter. The flagman had white and red lights, which were seen by the engineer about 200 yards before coming up to him, when he made an effort to stop the train. He called for brakes at once, but the testimony does not show that there was any response to the call, or that the brakes were used to assist in stopping the train. He reversed his engine and sanded the track, using all the sand he had in his effort to stop, but could not do so, and the collision occurred. He was running about 20 miles an hour on the grade, and, he says, about 4 miles an hour at the time of the collision. It would have taken 2 miles or more for the engineer to stop the train. He could not have stopped it by himself under 3 miles, on that heavy grade. With assistance to help hold the train, he could have stopped in the length of his train. The passenger train had passed the freight train at Brenham, and the conductor of the passenger train knew the freight was following him. The jury might well have found, on the testimony of Baird, the conductor of the passenger train, that the flagman was not sent back until 18 or 20 minutes before the collision occurred. The stop had been an hour, and this would make it appear that the flagman was not started back until 40 minutes after the passenger train had stopped. The conductor, however, also says that he sent out a flag immediately after the passenger train stopped. This could not be true if the other statement be true,—that the flagman had been sent out only 18 or 20 minutes before the collision. The flagman sent back had only gone about half a mile when the freight met him. If he had been out an hour, he could have gone much further back; and, considering the heavy grade and other conditions, it was his duty to go back far enough, if he had time, to secure the safety of the passenger train. It seems, if he had been out an hour, he had time to flag back much further than he did. If the conductor sent him out immediately, as he says, the brakeman was negligent. If the conductor waited 40 minutes after the passenger train stopped, to send him back, then this delay was negligent. The negligence, then, must be imputed to one or the other, or to both, and both were employés of defendant company. The fact that the flagman went back as far as usual, as shown by the testimony for defendant, would not exempt the company from the charge of negligence, even if it had such a rule. The conditions should govern in determining how far the flagman should go,—the steep grade, the dark night, the rain, slippery track, the curve in the track 250 yards to the rear of the passenger train; in short, all the conditions which interposed to prevent the stopping of the freight in the half mile. The most culpable negligence was the failure to protect the passenger train from collision, and is attributable to the operatives of the passenger train. We must conclude that there was negligence on the part of defendant's servants operating the two trains, which caused the collision and the injury to plaintiff.

The evidence is conflicting as to whether or not there were tail lights on the rear of the passenger train to warn an approaching train. The engineer says, however, that he saw the lights on the rear coach when he turned the curve 250 yards back of the passenger train. He could not have seen them further back, because of the curve, and he could not stop in time to prevent the collision. He had been attempting to stop from the time he saw the flagman's lights, half a mile back. Whether there were lights on the rear end of the passenger train, or not, was immaterial. The collision would have occurred with or without the signal lights so placed. Just before the collision the conductor of the passenger train came through the coach where plaintiff was. The conductor was going back, and told the passengers to "be quiet, and don't get excited," or words to that effect. His object was to prevent a stampede of the passengers. He stood on the steps, keeping the people back,—keeping them from stampeding, —because the steps were easily broken, and he was satisfied the collision would not break the car, and, if the passengers got out on the steps, they might be hurt. The collision broke in the door of the rear passenger car, and broke it up considerably. Plaintiff was sitting in the front part of the rear coach of the passenger train. The train had been stopped about an hour, and when the conductor came through hurriedly, telling the passengers to keep quiet, the plaintiff did not move, but was sitting on the seat, as stated, when the crash came. He had partially risen to his feet, noticing some men jump off. He fell forward, striking the back of the seat in front of him, and breaking its leg, and fell over on his head in the aisle. He had one rib broken, and a considerable contusion on the top of his head. He went to the back end of the car, where he had heard a man was hurt by a cut on the face, and closed up the wound. He was on his way to the Confederate reunion at Houston. He did not know how badly hurt he was at the time, but his side and head began to give him trouble. His head had not quit hurting up to the time he testified. He had fallen on his head at the time of the accident. After his arrival at Houston he commenced coughing, and coughed incessantly. He told his companions he would have to go home. He went back to the depot, and went home on the next train, and was suffering severely when he got back. He was 60 years old, and weighed when he started 252 pounds, and became much reduced afterwards. Could not sleep at night for two or three months. Did not sleep on an average of 2 or 3 out of 24 hours. Had horrid dreams. For a time he could not sleep in a bed at all,—would fall off. Quit sleeping on a bed, and slept on the floor. He never was affected that way before. The day after the plaintiff got back, he had to decline to dine with his two brothers. His family went, and left him at home. He got up, and fell back two or three times before he got steady enough to get to the wash bowl. Washed his face and hands, and fell down on the gallery. It was vertigo. He had never been affected that way before. His health was good when he started to Houston. After plaintiff got back from Houston, he sent for Dr. Compton. Dr. Compton and Dr. Nail dressed his side. There has not been a day, and probably not an hour, that he has not had a headache when awake since the accident. Up to the time of the hurt on the cars, plaintiff's health had been good from the time he was treated for catarrh by Dr. Ferrell. He had something like la grippe, or a bad cold, and had a bad recovery from it, and an abscess formed in the anthrum, and when he would lie down or sit down he would have some swimming in the head, but never when he was walking about. Dr. Ferrell cured him. That was a little over a year before the trip to Houston, and he was completely recovered from all the swimming in the head and dizziness. His nervous system is injured. He was a physician, but could not, after the collision, study his own case. He cannot read a page in a book; the letters get confused. He tried to read several times, and had to quit. He consulted many physicians, including one Dr. Gray, in New York. He was threatened with paralysis. Threatening was marked. Could not use his right foot nor his arm well. After Dr. Gray, of New York, who is a specialist on nervous diseases, commenced treating him, he got some relief, but the headache never stopped. When he got to New York he could hardly remember anything. He forgot his hotel in St. Louis, and had trouble to find it. When he had la grippe, he did not stop his practice. He had a spell of pneumonia when young. He has not been in bed a day since, from sickness, before the injury on the cars. The testimony shows that the base of the brain had been injured,— a deposit there from which plaintiff, perhaps, would not recover. The cerebellum was injured, affecting his vision, causing vertigo, failure of memory and locomotion, all resulting from the injury on the train. The trouble was progressive at the time of the trial. Plaintiff had lost 40 or 50 pounds in flesh up to a month before the trial, since when he had gained 4 or 5 pounds. "Eats and sleeps a little better" (at time of trial), but his muscles were gone,—soft as a baby's. He walked with difficulty (at time of trial), and at times could converse with a man for awhile; but at other times it was with difficulty he could understand the person, or make him understand. He has been totally impotent, having no sexual desire, since the accident, which was not the case before the accident, and has diabetes, which he did not have before....