Haughton v. Houston Belt & Terminal Ry. Co.

• Decision Date: 16 October 1958
• Docket Number: No. 13261,13261
• Citation: 317 S.W.2d 102
• Court: Texas Court of Appeals
• Parties: John HAUGHTON et al., Appellants, v. HOUSTON BELT & TERMINAL RAILWAY COMPANY, Incorporated, Appellee.

Page 102

317 S.W.2d 102

John HAUGHTON et al., Appellants, v. HOUSTON BELT & TERMINAL RAILWAY COMPANY, Incorporated, Appellee.

No. 13261.

Court of Civil Appeals of Texas, Houston.

Oct. 16, 1958.

Musick, Musick & Heath, Robert H. Heath, Houston, for appellants.

Fulbright, Crooker, Freeman, Bates & Jaworski, Quentin Bates, Houston, for appellee.

WOODRUFF, Justice.

This action was instituted by appellants, John Haughton, the surviving husband, and Alexander Minor, an adult dependent son, of Annie Coachman Haughton, deceased, to recover damages for the negligent killing of Annie Haughton on the night of May 8, 1954, by appellee's employees in running over her in the operation of its equipment. At the conclusion of appellants' testimony the trial court sustained appellee's motion to instruct a verdict in its behalf because appellants had failed to prove any negligence on the part of appellee's employees proximately causing Annie Haughton's death and because the proof showed that the deceased Annie Haughton was guilty of contributory negligence as a matter of law.

Judgment being entered accordingly appellants duly excepted and perfected their appeal to this Court.

The two points of error upon which appellants rely are that the trial court erred in directing a verdict against them because

'(1) They had pled and proved a prima facie case of negligence on the part of appellee and its employees which proximately caused Annie Haughton's death; and,

'(2) The proof did not establish contributory negligence on the part of Annie Haughton as a matter of law.'

By a counter-point appellee contends that the trial court correctly instructed the verdict in its favor because there was no proof of any negligence on the part of appellee or its employees proximately causing Annie Haughton's death.

The testimony showed that appellant, John Haughton, and Annie Haughton were married in 1927 and that she died as the result of the injuries she received by appellee's switch engine running over her about 10:30 p.m. on May 8, 1954, while she was crossing the railroad tracks running in a northerly and southerly direction located east of the Port City Stockyards and near which was located a water tank.

Appellants alleged that for many years there had been a foot path across appellee's tracks where Annie Haughton was run over; that the deceased was a licensee upon its premises; and that 'while using said bridge and pathway over said tracks * * * she fell to the ground and was injured and was unable to arise completely though in her efforts to gain her feet and safety' she would partially rise and fall back, and while thus engaged, she was struck by defendant's locomotive, run over and dragged some 15 feet, thus sustaining injuries from which she died.

The pertinent allegations of negligence proximately causing Annie Haughton's death, with which appellants charge appellee's agents were:

'(a) In running forward while pushing a car that blocked the headlight of the engine so that there was nothing visible from the used of said headlight same being ineffective as though there were no headlight at all;

'(b) In not keeping a proper lookout for pedestrians crossing and being on its right of way and on its tracks;

'(d) In running and operating said train engine and freight car at a high rate of speed and in not using ordinary care to slow the speed of said train engine, after its operatives saw, or should have seen said decedent, Annie Haughton, on the track, and right of way and realized their perilous condition, and from which they failed to extricate themselves;

'(e) In not using ordinary case, under the circumstances, to have said train under such control so that it could, after its operatives saw or should have seen said decedent, Annie Haughton, on the track, have slowed or stopped said train to avoid killing her after realizing the perilous condition of said Annie Haughton from which they did not extricate themselves; and

'(f) For operating and running said engine without a headlight, or with a headlight rendered useless, by obscuring and shielding said headlight so that they could not see far enough ahead to properly control the train at the speed they were traveling.'

Appellee's answer consisted of a general denial, a plea of contributory negligence, and the affirmative defense of unavoidable accident.

Inasmuch as the trial court instructed the verdict against appellants, we must review the evidence offered by them and determine its sufficiency according to established rules. The applicable rule is that the quantum of proof required of a litigant on its fact issues to entitle him to a submission to a jury is the introduction of such facts and circumstances as taken together with all reasonable inferences therefrom to constitute some evidence of probative force of their existence. Ford v. Panhandle & S. F. Ry. Co., 151 Tex. 538, 252 S.W.2d 561; White v. White, 141 Tex. 328, 172 S.W.2d 295.

In determining whether the appellants in this case have discharged this burden, we must view and interpret the evidence in the record in its most favorable light to the appellants, disregarding all evidence and the inferences therefrom favorable to the appellee. Ford v. Panhandle & S. F. Ry. Co., supra; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Smith v. Consolidated Cas. Ins. Co., Tex.Civ.App., 290 S.W.2d 589-591, writ ref., n. r. e.; Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365; Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256.

We pass now to a discussion of the evidence. There can be no question concerning the adequacy of the proof to establish the fact that Annie Haughton was a licensee in the use of the path across the tracks. Appellant Haughton testified that twenty years before Annie was killed he had built his home and five rent houses across the tracks from Port City Stockyards and that about 1932, with permission from Mr. Cooper, 'a man from the railroad company,' he built a foot-bridge of twelve ties across the ditch near the water tank on the west side close to the stockyards and thereafter he placed a small bridge on the east side of the tracks. Seven witnesses, including appellants, testified to their having lived or visited east of the tracks and to their use and the use by many others, during the day and night, of the bridges and the path across appellee's track over a period of many years in going to and returning from various places to the west of the tracks, including getting water from the tower. There was also testimony that such use of the pathway had been made without complaint or admonition from appellee or its employees. This evidence, in our opinion, was amply sufficient to raise the issue that Annie Haughton was a licensee while using the walkway across the tracks on the occasion in question. Gulf, C. & S. F. R. Co. v. Matthews, 99 Tex. 160, 88 S.W. 192, 197; Gulf, C. & S. F. R. Co. v. Cohen, Tex.Civ.App., 126 S.W. 916; Texas & N. O. R. Co. v. Howell, Tex.Civ.App., 176 S.W.2d 787; 35 Tex.Jur., p. 951, Sec. 386.

Appellee, in its brief, has raised the question of the sufficiency of some of appellants' allegations of negligence. Possibly more care and accuracy could have been used in drafting them. However, no special exception appears to have been filed raising this contention in the trial court. The rule is that in construing a plaintiff's pleading in the absence of special exceptions all reasonable intendments will be resolved in their favor. Hanley v. Oil Capital Broadcasting Ass'n, 141 Tex. 243, 171 S.W.2d 864; 33 Tex.Jur., pp. 628-629; M System Stores v. Davenport, Tex.Civ.App., 36 S.W.2d 243, writ dism.

We are of the opinion that the foregoing allegations were sufficient, if supported by the evidence to require the submission of the following special issues of negligence on the part of the appellee and its operatives, in the following particulars:

'(b) In failing to keep a proper lookout for pedestrians, including Annie Haughton, crossing and being on its right of way and tracks at the place in question;

'(d) In operating the engine and freight car at a high and excessive rate of speed under the circumstances; and

'(e) In failing to have the train under such control that after its operatives saw, or, in the exercise of ordinary care, they should have seen, the decedent upon the track, they could have slowed or stopped the train in time to have avoided killing her.'

We now come to a consideration of the sufficiency of the proof to establish negligence on the part of the appellee and its employees. Sol Wright, who had lived across the tracks for about 15 years, testified that on the night of May 8, 1954, between 10 and 11 p. m. Annie Haughton, Joe Campbell, and Alexander Minor (Annie's son), who were riding in a taxi on Calhoun Street, picked him up and brought him to the stockyards near the tracks. He said that he had not drunk anything that evening and neither had Annie nor Alexander, although Joe Campbell 'may have has a couple of beers.'

Annie Haughton got out first, so he said, and started home. Some 15 or 20 minutes later he started across the tracks and saw a brakeman shining a light under a switch engine, and Annie was under it. With reference to lights in the area, he said there were none except 'them little old dim lights from the stockyards.' He said that the engine was backing up and 'coming back to town towing a work car', that the light was on the back of the switch engine. It was a 'little bitty switch engine.' He said 'they don't switch there; they switch around the station', which the testimony showed was some distance to the south. He did not hear a whistle blow but he heard 'the locomotive slam the brakes on * * *. When he put the brakes on I heard them screech;' and 'I walked kind of fast to get around there.' He also stated that the engine was blocking the path when it stopped.

Mildred Yancy testified she had known Annie Haughton for about...