Hawthorne v. Texas & N. O. R. Co.

• Decision Date: 27 June 1935
• Docket Number: No. 2808.,2808.
• Citation: 84 S.W.2d 1015
• Parties: HAWTHORNE v. TEXAS & N. O. R. CO.
• Court: Texas Court of Appeals

84 S.W.2d 1015

HAWTHORNE v. TEXAS & N. O. R. CO.

No. 2808.

Court of Civil Appeals of Texas. Beaumont.

June 27, 1935.

Appeal from District Court, Harris County; Chas. E. Ash, Judge.

Suit by C. T. Hawthorne against the Texas & New Orleans Railroad Company. From a judgment for defendant on instructed verdict, plaintiff appeals.

Affirmed.

Burris, Green & Benton, of Houston, for appellant.

Baker, Botts, Andrews & Wharton, of Houston, for appellee.

COMBS, Justice.

The appellant, C. T. Hawthorne, was injured by falling under one of appellee's trains, which severed his left leg below the knee. Appellant was the only eyewitness. He testified that at about 11 p. m. on August 17, 1932, he started out from his sister's home to walk to the Houston ship channel. He proceeded on the Griggs street road, which runs parallel to the railroad right of way of the appellee, and, finding rather heavy traffic on the road, he stepped, from it onto the railroad right of way and proceeded to walk down the track. As he walked down the track, he observed a freight train approaching and stepped aside to let it pass. He stood facing the train about 3 feet from the cars. After the engine and ten or twelve cars were past, something struck him in the side and knocked or jerked him down and his leg was severed by the train, as above mentioned. He did not know what it was that hit him, but said it felt like a rod. Apparently the train crew knew nothing of the accident at the time, and the train did not stop. This suit was filed in the district court of Harris county seeking damages in the amount of $50,000. In his petition appellant charged the railroad company with negligence in operating its freight train with a projection extending approximately 4 feet in a horizontal position from the side of its cars in such way as would likely injure the plaintiff or other persons standing or walking near the track at a safe distance; in failing to give proper warning of such projection, and several other specific acts of negligence. At the conclusion of appellant's evidence, the trial court instructed a verdict in favor of the defendant railroad.

Other than as above stated, there was no evidence as to what struck the appellant or that there was any projection on the cars of the appellee, or that the agents and employees of appellee were negligent in any respect charged. The facts show that the track where appellant was injured was frequently used by pedestrians as a walkway, and appellee concedes that appellant was a licensee. Appellee also concedes that the question of appellant's contributory negligence was one of fact for the jury. The instructed verdict, therefore, rests alone upon the proposition that the pleadings and evidence did not raise any issue that appellant's injury resulted from the negligence of the railroad company.

We think the trial court properly instructed the verdict. The evidence of appellant failed to raise any issue for the jury as to any act of negligence charged in his petition. Appellant's own testimony shows that he did not see the alleged projection; that he did not know what kind of car was passing at the time he was struck; that he did not know whether the instrumentality which struck him was attached to any car or whether it was on a wheel or axle, and he admitted that it might have been a piece of heavy wire. There is nothing in the evidence to indicate any negligence on the part of the operatives of the train in any of the respects charged....