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

• Decision Date: 29 May 1935
• Docket Number: No. 1863-6388.,1863-6388.
• Citation: Gulf, C. & S. F. Ry. Co. v. Russell, 82 S.W.2d 948, 125 Tex. 443 (Tex. 1935)
• Parties: GULF, C. & S. F. RY. CO. v. RUSSELL.
• Court: Texas Supreme Court

82 S.W.2d 948

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

No. 1863-6388.

Commission of Appeals of Texas, Section A.

May 29, 1935.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by G. R. Russell against the Gulf, Colorado & Santa Fe Railway Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals [52 S.W.(2d) 1085], and defendant brings error.

Reversed and rendered.

B. M. McMahan, of Greenville, and Terry, Cavin & Mills, G. B. Ross, and Joyce Cox, all of Galveston, for plaintiff in error.

Clark, Harrell & Clark, of Greenville, for defendant in error.

GERMAN, Judge.

Defendant in error, G. R. Russell, was awarded a judgment against plaintiff in error, Gulf, Colorado & Santa Fe Railway Company, in the district court of Hunt county for $2,875 for loss of his left hand.This judgment was affirmed by the Court of Civil Appeals, and a full statement of facts will be found in the opinion.52 S. W.(2d) 1085.The parties will be referred to as plaintiff and defendant as in the trial court.We briefly summarize the essential facts as follows:

About 8:30 o'clock at night plaintiff left his home in Wolfe City for a walk.He went out beyond the business portion of the town and beyond where Hannah street crossed the railroad track, which was about 1/2 mile south or southwest of the depot.Hannah street is apparently a narrow graded street somewhat wider than the ordinary roadway.It crosses the railroad track in a general direction of east and west.After plaintiff had gone a short distance beyond where the street crossed the railroad track, he started back home, and when he came to where the street crosses the railroad, instead of traveling the street and highway back to his home, he started down the railroad track towards the depot and the business portion of the town.As to what then occurred, we take the following statement from the testimony of plaintiff himself: "There is a cattle guard at Hannah Street crossing where I turned to walk on the track.I crossed over the cattle guard and was walking in the center of the track between the rails.In the distance of about three or four steps after I had crossed over the cattle guard I was met and accosted by a man whom I did not know.He said to me, `Where in the hell are you going?'I replied, `What in the hell is it to you?'Then several licks passed between us.I made an effort to defend myself.The man hit me on the forehead and on the top of the head with some hard substance which knocked me to the ground.The blow knocked me unconscious and I remained so for a while.I don't know how long I remained unconscious there on the track, but I regained consciousness about the time the passenger train was approaching the crossing.I first heard the noise the train was making and I saw the headlight, but could not tell how close it was to me.I was lying partly across one of the rails and I tried to stand but I was weak and could not make it.I then by efforts pushed and pulled myself off the track the best I could do.The train then reached and passed me and ran over my left hand.After the train passed I was able to get up straight and I went direct to Mr. Mose Warren's house and waited there until the ambulance came."

The actual place on the rail where plaintiff's hand was crushed, as shown by the blood and flesh on the rail, was, according to the testimony of some witnesses, about 12 feet from the cattle guard and by the testimony of other witnesses only about 52 inches from the north margin of the cattle guard.It seems to be undisputed that the track was straight for a long distance south of the crossing.It appears from actual photographs that the railroad track was not level, by which we mean that the soil did not come to the tops of the railroad ties, but that the ties were some inches higher than the ground on which they lay.It is also shown that grass and weeds were growing between the ties and even above the tops of the ties, and above the tops of the rails of the cattle guard, and also covered the right of way up to the ends of the ties and between the ends of the ties to the rails of the track.

The basis of plaintiff's claim of negligence on the part of the railway company is reflected by the following portion of his pleading: "That the defendant's railroad track and right of way is perfectly straight for a distance of approximately two miles southwest from said Hannah Street crossing; that the view of said track by the engineer on defendant's locomotive, which was pulling its passenger train at the time mentioned in the preceding portion of this petition, was clear and unobstructed for a distance of approximately two miles southwest from said Hannah Street; that it was the duty of the defendant, its agents and servants operating said passenger train to use ordinary care to keep a proper lookout to discover persons who might be upon said track and especially who might be at or near the public street crossings over which said line of railroad track passed in said City of Wolfe City, and especially to see and discover plaintiff lying upon said track at or near said Hannah Street crossing in the perilous condition which he was in at the time; that if the defendant, its agents and servants operating said passenger train had used ordinary care to keep a proper lookout, they could and would have seen and discovered plaintiff lying upon said track in sufficient time before said passenger train reached the point where he was lying to have checked its speed or to have brought said train to a stop and to have avoided running over plaintiff's hand; but plaintiff alleges that the defendant and its agents and servants in charge of, and operating said passenger train, negligently and carelessly failed to keep a proper lookout and to discover plaintiff lying upon its track at said time and place, and that such negligent and careless failure on the part of the defendant, its agents and servants, was the proximate cause of said passenger train running over plaintiff's hand and injuring him as above alleged.Plaintiff alleges and charges the fact to be that the defendant and its agents and servants operating said passenger train, although they could, by the exercise of ordinary care, have seen and discovered plaintiff lying upon the track as aforesaid in time to have checked the speed of said train or brought it to a stop and avoided running over his hand, were not even looking down said track and did not see plaintiff lying on said track or crawling off of said track in an attempt to extricate himself from his perilous condition, but continued to run said train at a rapid rate of speed and did not begin to slacken its speed until it was approaching defendant's depot and did not stop said train until it arrived at said depot, a distance of twenty telegraph poles from the place where plaintiff was run over."

The case was submitted to the jury upon a general charge.As touching the negligent acts necessary to authorize the jury to find in favor of plaintiff, the court, among other things, charged the jury as follows: "If you further believe that the defendant's agents and employees in charge of the operation of said train as it approached the crossing failed to use ordinary care to keep a lookout for persons who might be on said railroad track at said point; and if you further believe that the plaintiff began to regain consciousness as the train approached said point, and that he undertook to get off said track before the train reached him, and that in trying to do so the train, or some portion of it, ran over plaintiff's hand, crushing it to such an extent that amputation was necessary; and if you further believe that the failure of the employees of the defendant, or either of them, operating said train to use ordinary care to keep a lookout, if they did so fail, was the proximate cause of the train running over the plaintiff's hand, then and in that event you will find a verdict for the plaintiff, and assess his damages according to the rule hereinafter given you, but unless you so believe you will return a verdict for defendant."

Defendant railway company assigns several reasons why the judgment of the trial court and the Court of Civil Appeals should be reversed and judgment rendered in its favor, or the cause be remanded.Some of them are not sound.We may say in the beginning that there was no evidence whatever tending to show that the railroad track at the place of the injury was used by persons as a place of travel at night, and for that reason defendant owed plaintiff no extra duty in that regard.As was said in the case of St. Louis, Southwestern Railway Co. v. Watts, 110 Tex. 106, 216 S. W. 391, the company owed plaintiff no duty as a licensee, but only such duty as was owed to him as a trespasser.Having left the street crossing and entered upon his journey to town upon the railroad track at a point where the public was not accustomed to use it for travel at night, there is no question but what plaintiff when first entering upon the track was a trespasser.Before referring to the matter of the duty owed by defendant to plaintiff, it is proper to dispose of the question of contributory negligence.

It is well settled by our decisions that one using a railroad track solely for travel, at a point where persons are not accustomed to travel with the knowledge and consent of the company, is guilty of contributory negligence as a matter of law, and is not entitled to recovery, unless there be some circumstance which intervenes to neutralize his negligence as a contributing cause of the injury.This is particularly true when the party chooses a dangerous way in lieu of a safe way, as in this instance.Texas Midland Ry. Co. v. Byrd, 102 Tex. 263, 267, 115 S. W. 1163, 20 L. R. A. (N. S.) 429, 20 Ann. Cas. 137.

But notwithstanding the fact that when plaintiff entered upon the railroad track he was a trespasser, this...