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

• Decision Date: 19 February 1919
• Docket Number: (No. 39-2692.)
• Citation: 208 S.W. 895
• Parties: GULF, C. & S. F. RY. CO. v. GADDIS et al.
• Court: Texas Supreme Court

208 S.W. 895

GULF, C. & S. F. RY. CO. v. GADDIS et al.

(No. 39-2692.)

Commission of Appeals of Texas, Section B.

February 19, 1919.

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

Action by Nancy Gaddis and others against the Gulf, Colorado & Santa Fé Railway Company. A judgment for plaintiffs was affirmed by the Court of Civil Appeals (166 S. W. 124), and defendant brings error. Reversed and rendered.

Terry, Cavin & Mills, of Galveston, and Lee & Lomax, of Ft. Worth, for plaintiff in error.

Slay & Simon, of Ft. Worth, for defendants in error.

McCLENDON, J.

This case is brought to the Supreme Court upon writ of error by defendant to review a judgment of the Court of Civil Appeals, Second District (166 S. W. 124), affirming a judgment of the district court of Tarrant county in favor of plaintiffs in an action to recover for the death of Jack Gaddis, who was killed about 9:30 o'clock p. m., December 28, 1911, at Elizabeth street crossing in the city of Ft. Worth by one of defendant's passenger trains.

The sole question presented for our decision is whether Gaddis was guilty of contributory negligence as a matter of law.

The evidence is practically undisputed, the defendant having offered no testimony. The facts material to the issue here presented are simple and substantially as follows: Elizabeth street, which extends north and south, was intersected by the main line of defendant, as well as by several tracks of other companies. It was frequently traveled both by vehicles of every character and by pedestrians. The defendant maintained a watchman for the protection of travelers upon the street. Gaddis, who was 44 years of age, had lived some years in Ft. Worth; and, when traveling from his home to the business part of the city on foot, by the most direct route, he had to pass over the Elizabeth street crossing. The defendant's track north of the crossing is straight and unobstructed for a distance of about 900 feet. Upon the night in question, the passenger train that killed Gaddis was traveling south upon defendant's main line track at the rate of about 20 miles per hour, in violation of a city ordinance limiting the speed of trains to 6 miles per hour. When the train was at a distance of about 500 feet and again at about 300 feet of the crossing, the whistle was sounded and the bell was continuously rung. The electric headlight on the engine was burning and threw a flood of light down the track. Gaddis was walking east on the south side of Elizabeth Street at an ordinary gait. The flagman was in the center of the street, waiving a red lantern, and, when Gaddis was about 15 feet from the track, the flagman called to him to look out. The flagman was then in the center of the street some 20 to 24 feet north of Gaddis. Gaddis turned his head in the direction of the flagman, quickened his pace in the direction he was going, and just as he reached the track was struck by the train and killed. About the time the engine entered Elizabeth street, the whistle of the engine gave several short, sharp blasts, the brakes were applied, and the train came to a stop, but not until the engine had passed the crossing several car lengths. At the time Gaddis turned his head toward the flagman, the engine was some 60 or 70 feet north of where he was struck.

The theory of plaintiffs is that when Gaddis was warned by the flagman, and turned his head in that direction, he saw the train, and, assuming that it was going at not exceeding 6 miles an hour as required by the ordinance, he calculated that he could with safety cross the track in front of it; and that, under this theory, it was a question of fact for the jury to determine whether a man of ordinary prudence would have then attempted to cross in front of the train. The issue by the uncontroverted facts is thus narrowed down to the question whether as a matter of law one traveling upon a highway is warranted in using his own judgment in attempting to pass in front of a moving train in a case where the railway company has provided a flagman for the protection of passers and the flagman warns him not to pass. The cases cited by plaintiffs in which it is held that one using a public highway has a right to assume that a railway company, making use thereof, will not violate the law, are all lacking in the element, here present, that the railway company had provided a flagman for the very purpose of warning and protecting the public. The test to be applied of ordinary care on the part of those using the highway is usually one of fact for the jury, and this is true, not only when the facts and surrounding circumstances are in dispute, but even where the facts may be undisputed if...