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

• Decision Date: 03 October 1895
• Citation: 32 S.W. 351
• Parties: GULF, C. & S. F. RY. CO. v. WILKINS.
• Court: Texas Court of Appeals

32 S.W. 351

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

Court of Civil Appeals of Texas.

October 3, 1895.

Appeal from district court, Washington county; Ed. R. Sinks, Judge.

Action by W. G. Wilkins against the Gulf, Colorado & Santa Fé Railway Company for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

J. W. Terry, for appellant. Rogers & Herbst and O. T. Holt, for appellee.

WILLIAMS, J.

In disposing of this case we find it necessary to consider only the question whether or not the evidence is sufficient to sustain a verdict holding appellant liable for damages for the injuries sustained by appellee. As one reason why it is not liable appellant claims that the evidence shows conclusively that appellee was guilty of contributory negligence, and was not, therefore, entitled to recover. This question was submitted by the court to the jury, and they found for plaintiff, affirming by their verdict that he was not guilty of negligence contributing to the injury; and, if there is any rational view of the testimony upon which appellee can be acquitted of the charge, or if the facts are such that unbiased minds might reasonably differ upon the question, the verdict must be permitted to stand, as the jury are, in the first instance, the judges of such questions. The considerations which are to guide the court in performing the duty of reviewing the action of the jury—a duty as well defined as is the province of the jury itself—have been so often stated that it would be a mere waste of time and space to restate them.

The facts show that appellee left his home, in the southwestern part of the town of Brenham, intending to go to a part of the town beyond the tracks and depot of appellant. He followed the streets until he reached the railroad track, running nearly north and south through the town when he left the street, and walked in a footway, which led along an embankment on the western side of the track, until he came to a point beyond which it was inconvenient, if not impracticable, to further travel upon the embankment, and then descended into the ditch or trench between the embankment and the roadbed. Immediately east of the point at which appellee had arrived, there were five tracks, including main track and side tracks, numbered 1, 2, 3, 4, and 5; No. 1 being furthest east, and No. 5 furthest west. These tracks ran nearly north and south, crossing the streets, especially Key street, obliquely. There were three switch stands at some distance from each other north and south. When he went down the embankment, appellee observed an engine and some cars to the southward of him, near the switch furthest south. He walked near the track, going north, until he passed the second or middle switch, and then, being aware that the engine and cars were moving, he stopped, and watched them, until he saw that they had passed through the switch and onto track No. 3. He then, without looking, proceeded northward, walking near the western edge of track No. 5 with his back to the south, and after he had walked 20 or 25 feet he was struck on the right arm by a detached box car, which came up behind him. The evidence is sufficient to show that he was prevented by the noise made by the engine and cars from hearing the approach of the car which struck him. This car had been sent upon switch track No. 5 by the process called by the witnesses a "drop switch." In this operation the car is pushed by the engine to the top of a grade, the brakes upon it are set, the engine is then taken away, and proceeds through the switch, which after its passage is changed so as to admit upon the proper track the car to be switched. This, the brakes being then removed, runs down the grade and through the switch to its position. The evidence warrants the conclusion that appellant, when struck, was in Key street, but he was at a point in it which was not used as a crossing. It seems that a part of the street is rendered unfit for the passage of vehicles by the embankment, and the ditch cut by appellant along its roadbed, and it was in this part of it that appellant was hurt. The street is 60 feet wide, but the crossing upon the roadbed, kept by appellant, for travel, is only about 30 feet wide, and is about the middle of the street. Appellee was not attempting to cross the railroad, but was walking parallel with it, and near enough to it to be struck by the car. It was shown that the route pursued by appellee in going from his home was one which has been frequently used by foot passengers, but there was no evidence from which might be inferred a license or invitation from appellant to any one to so use its right of way. Track No. 5 was a spur switch to the cotton compress, and prior to the accident cars were habitually switched in upon it in the manner in which the switching was done on this occasion, and this fact was known to appellee. He knew also, on the morning in question, that the engine was engaged in switching cars. At the middle switch, which he passed before he was hurt, a switchman was stationed. Appellee passed behind this switchman, and was not seen by him. A brakeman rode upon the car which struck appellee, but did not see him until after he was hurt. There is no evidence that any of the employés saw appellee in time to prevent the injury. The evidence conflicts as to the rate of speed at which the car was moving, some of the witnesses fixing it as high as 18 miles and others at 4 or 5 miles per hour. It may be assumed that its speed was greater than, with proper care, appellant ought...