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

• Decision Date: 11 May 1901
• Citation: 64 S.W. 688
• Parties: GULF, C. & S. F. RY. CO. v. MORGAN et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

64 S.W. 688

GULF, C. & S. F. RY. CO. v. MORGAN et al.¹

Court of Civil Appeals of Texas.

May 11, 1901.

Error from district court, Delta county; L. A. Clark, Judge.

Action by Wylie Morgan against the Gulf, Colorado & Santa Fé Railway Company for personal injuries. There was judgment for plaintiff. He dying, Mrs. Nellie Morgan and others were made parties, and error brought. Affirmed.

J. W. Terry and Chas. K. Lee, for plaintiff in error. Hazlewood & Smith, Newman Phillips, and Ed. H. Bennett, for defendants in error.

BOOKHOUT, J.

This suit was instituted by Wylie Morgan to recover damages for personal injuries alleged to have been received by him by being struck by one of the plaintiff in error's passenger trains at Ladonia. There was a trial before a jury, and verdict and judgment for the plaintiff for the sum of $4,000. After the motion for new trial was overruled, the plaintiff, Wylie Morgan, died, and his wife, Mrs. Nellie Morgan, and their minor son, Albert Morgan, were made parties, and a writ of error has been duly prosecuted from the judgment to this court.

Defendant in the court below pleaded, among other things, that Morgan, in attempting to cross the track at the time and in the manner he did, was guilty of contributory negligence, and the plaintiff, by his supplemental petition, replied that it was true that he was upon defendant's track at the time he was injured, but that he was there in attempting to board one of defendant's passenger trains as a passenger; that there was no other way provided by defendant for passengers to board said train except to cross defendant's track at the time and in the manner plaintiff did at the time he was so struck; that he attempted to board said train at the time and place and in the manner passengers getting aboard said train had for a long time before been accustomed to doing, with full knowledge and consent, and upon the invitation of the defendant, its agents and servants; and that plaintiff's injuries were caused by the reckless and negligent conduct of the defendant, its agents and servants, in providing an unsafe and dangerous approach to its trains at said station, and by the reckless and careless manner in which the agents and servants of defendant managed and operated the train on which plaintiff was attempting to take passage, as well as the negligent manner in which the train was operated which struck and injured plaintiff; and that his injuries were directly caused by the aforesaid negligence of defendant, its agents and servants, as set forth in plaintiff's first amended original petition; and his said injuries were not caused or contributed to by any negligence or want of care on the part of plaintiff. It is agreed that the undisputed evidence shows: That the town of Ladonia, where Morgan was injured, is an incorporated town of 1,500 to 2,500 people. That the road of defendant in error runs through the town from north to south, and that its station is on the west side of defendant's tracks, within about 12 or 15 feet thereof. That there is no platform except gravel, which extends from the depot out to the first rail of said track. That just across the main track, within about six or eight feet thereof, is a side track, extending something like 100 yards north and south from the depot. That there is no station on the east side of the track, and that all persons who get off and on defendant's trains at said station (except passengers on the Honey Grove Branch) get off and on from the west side. That for more than a year prior to the time Morgan was injured two of defendant's passenger trains had been passing each other daily at said station at about 5 o'clock p. m.; the one from the north known as "No. 77," and the one from the south as "No. 74." That under the rules of defendant's road No. 74 pulled in on the siding at the south end of the switch so as to let No. 77 pass on the main track. That No. 74, after taking the siding, would pull down in front of the station, where persons desiring to alight or get aboard said train were permitted to do so; it being necessary for persons getting on or off said train No. 74 to pass over said main track. That No. 74 was due at Ladonia about five minutes ahead of No. 77. That plaintiff, on the 28th day of July, 1899, as he was in the act of attempting to cross the main track in front of the depot to get on No. 74, which was on the side track in front of the depot, was struck by train No. 77 as it came into the station, and injured. That, in order to get on train No. 74, plaintiff was compelled to cross the main track, the one on which the accident occurred.

The first, second, and third assignments of error are grouped, and it is contended thereunder, that the court erred in overruling defendant's motion for a new trial because the overwhelming preponderance of the testimony shows that plaintiff was guilty of contributory negligence, in that the proof showed he started across the defendant's track without looking or listening for an approaching train, and without making any effort to discover a train; that he practically ran into the train when the train was right on him, and when the crowd at the depot was surging back, due to the approach of the train, and when, had he exercised any care whatever, he must have known the train was approaching, and at a time when he knew the train he was going to take was to meet the train that struck him at Ladonia, and was likely to run into the station at any minute; that, even if the call "All aboard!" was given by the conductor, it was given at a time when the train had been standing at the depot six or seven minutes, and when all intending passengers had had ample time to get on the train; and that plaintiff had ample time to have walked across the track before the south-bound train came in, but that he lingered and loitered on the platform, talking to some friends, and paying no attention to his surroundings, and as he saw the train come in rushed headlong across the track, and practically into the incoming train. Whether the conductor of the northbound train called "All aboard!" just as that train started, and whether Morgan started without delay after such call to cross the track and board that train, and whether the south-bound train came into the depot at an unusual and unsafe rate of speed, and whether it gave the statutory signals, were all controverted questions of fact in this case. On all of these questions there was evidence both...