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

• Decision Date: 28 November 1900
• Citation: 59 S.W. 589
• Parties: GULF, C. & S. F. RY. CO. v. WILSON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

59 S.W. 589

GULF, C. & S. F. RY. CO. v. WILSON.¹

Court of Civil Appeals of Texas.

November 28, 1900.

Appeal from district court, Galveston county; E. D. Cavin, Judge.

Action by William Wilson against the Gulf, Colorado & Santa Fé Railway Company for injuries sustained. From a judgment in favor of the plaintiff, defendant appeals. Reversed.

J. W. Terry and R. V. Davidson, for appellant. Lovejoy, Sampson & Malevinsky, for appellee.

GILL, J.

This is an action for damages for personal injuries alleged to have been sustained by appellee while undertaking to cross appellant's track at a public crossing in the city of Galveston. A trial by jury resulted in a verdict and judgment in favor of appellee, from which appellant, the railway company, has appealed.

In brief the charges of negligence were that the engine which was pushing the cars which collided with appellee was provided with neither air brakes nor sand; that no signal was given by bell or whistle in approaching the crossing at which the accident occurred, and that no flagman was stationed at the crossing, and no brakeman on the rear car. The defense was general denial and contributory negligence. We gather from the record that the accident occurred under the following circumstances: The appellee, William Wilson, was, on the 8th day of December, 1898, working on the wharf at Galveston as longshoreman. Some time in the afternoon it began to rain, and he quit work, and started in a southerly direction to his home, carrying on his shoulder a stick of timber about 4 inches square and 14 feet long for use as firewood. His route home led over a crossing on a railroad track then in use by appellant for switching freight cars. Just as appellee undertook to cross the track, one of appellant's moving cars struck him, knocked him down, and, passing partly over him, injured him severely. The car which struck him was a large furniture car, part of a train of three cars which was being pushed in an easterly direction by one of appellant's engines at a speed generally estimated at four miles per hour. The engine and cars were in charge of a crew of four men, two of whom saw appellee just before and at the time he was struck, and the cars were stopped within 35 feet of the point of collision. The engine was not equipped with brakes, and had no sand with which to sand the rails. Had the engine been equipped with air brakes and sand, it could have been stopped more quickly after he was struck, but this equipment would not have resulted in stopping it before the collision, as the crew, acting on the assumption that defendant saw or heard the train, and would not attempt to cross, did not undertake to stop the train until almost the moment of contact with appellee. The place of the accident was a public crossing, and the evidence was sufficient to authorize the conclusion that those in charge of the engine neither sounded the whistle nor rung the bell in approaching the crossing, and gave no other specific warning of the train's approach. They had no brakeman on the rear of the train, nor a flagman at the crossing, but of this latter fact appellee was aware.

It is not insisted by appellant that the evidence was insufficient to support the finding of negligence on the part of the railway company in the respects alleged, but it is strenuously contended that the verdict of the jury is so manifestly against the great weight and preponderance of the evidence on the question of contributory negligence as to demand a reversal of the judgment on that ground alone. The facts bearing upon this issue are as follows: The tracks and yards at the point in question were the property of the Galveston Wharf Company, but were in daily use by the several railroads terminating in Galveston for the purpose of switching their cars from point to point along the wharf as necessity or convenience required, and appellant was so engaged when the accident occurred; the crew in charge of the engine being engaged in pushing three cars in an easterly direction towards the crossing for the purpose of placing them on a track east thereof. The track they used in passing over the crossing was the track nearest the wharf front at that point, so that it was the first track which appellee reached in going from the wharf to his home (after crossing a track running immediately next to the wharf shed). The distance between this track and the wharf sheds at this point was about 150 feet, and there was no intervening obstruction to the view. A person standing at the wharf sheds immediately north of the crossing could easily see the crossing and appellee was in fact seen from near that point just before the accident. Just west of this crossing, and to the north of the track on which the accident occurred, is a spur track, called the "levee track," which connected by a switch with the track in use a little west of the crossing. This levee track was filled with box cars up to within 148 feet of the crossing, it being necessary to put the nearest car that far back in order to allow the moving cars to pass on the adjacent track without striking the projecting sides and corners of the cars on the levee track. When appellee started from his work, he had an unobstructed view of the crossing and of the track on which the moving cars were for a distance of 148 feet west of the crossing. As he approached the crossing, the extent of this view in a westerly direction, towards the point from whence the train was coming, gradually increased until he arrived at a point within 8 or 10 feet of the track, when he had an unobstructed view west for many hundred feet. It thus appears that the cars on the levee track amounted to no obstruction at any point in his journey as regards the crossing itself and a distance of 148 feet to the west thereof, and no obstruction to a view of any part of the track west after he arrived within 8 or 10 feet of the track. Appellee himself testifies that he stopped and looked out for the train several times before reaching the crossing, and that when he reached a point within 15 or 20 feet of the track he saw the train standing still about 70 feet to the west of him. He also stated that a colored man with a coal dray was standing near, waiting for the cars. It was shown that it was raining, and that a heavy gale was blowing from the northeast, but it is clear that the rain was not sufficiently heavy to interfere with the vision. The wind, however, blowing in the direction of the train probably prevented his hearing the noise of its approach. Two elevator posts 12 inches square and 20 feet apart were within 6 feet of the track, but appellee did not claim in his testimony that their presence prevented him from seeing the approaching cars. The general direction of the wharf company's tracks and of the track on which the accident occurred is east and west. Counsel for appellee contend that the question was for the jury, and that to disturb their verdict would be a clear invasion of their province. In this connection appellee insists that an appellate court may reverse on the facts only when ordinary minds can arrive at no other conclusion from the evidence. We understand this to be the rule in ascertaining whether there is any evidence to support the verdict, but not the rule by which appellate courts are controlled in determining whether a cause should be reversed on the ground that the verdict is against the great weight and preponderance of the evidence. Choate v. Railway Co., 91 Tex. 406, 44 S. W. 69, and authorities cited. In the case just cited it was held that the evidence authorized the submission of the cause to a jury, but the right of an appellate court to reverse on the facts was conceded. The question here is, do the evidence and attending circumstances so strongly negative the exercise of any care on the part of the appellee as to lead to the conclusion that the jury were laboring under some misapprehension or improper motive or influence in arriving at their verdict? The negligence of appellant has been shown by evidence of a character sufficient to support the verdict upon that issue. At the same time there was submitted for the consideration of the jury evidence practically uncontradicted which tended with much greater force to establish the negligence of appellee, and which, if established, would have served as a complete defense to his suit. It is true, the...