Houston & T. C. R. Co. v. Ramsey

• Decision Date: 03 June 1904
• Parties: HOUSTON & T. C. R. CO. v. RAMSEY et al.
• Court: Texas Court of Appeals

81 S.W. 825

HOUSTON & T. C. R. CO. v. RAMSEY et al.

Court of Civil Appeals of Texas.

June 3, 1904.

Appeal from District Court, Brazos County; J. C. Scott, Judge.

Action by H. S. and W. H. Ramsey against the Houston & Texas Central Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed.

Andrews & Ball and Henry L. Borden, for appellant. Doremus & Butler and C. H. Steele, for appellees

GILL, J.

This suit was brought by appellees to recover damages for the death of their son, John Ramsey, who was struck and killed by one of appellant's trains. A trial by jury resulted in a verdict and judgment for appellees, of which the railway company here complains.

In August, 1903, John Ramsey, the son of appellees, borrowed a railway bicycle, and was riding it on appellant's track in a southerly direction from College Station. From a section house south of College Station to and beyond the point of the accident, the track was straight and down grade. Appellant's passenger train which was due at College Station at 7 p. m. was a few minutes late, and the engineer in charge was trying to make up the lost time. After it passed the section house its speed was unusually fast, the witnesses estimating it at from 35 to 50 miles an hour, the best estimate placing it at, at least, 45 miles per hour. It overtook the bicycle within about 400 feet of the water tank, threw the wheel and its rider from the track, and killed the rider. Deceased was not an employé of appellant, and had no right to be upon the track. The bicycle did not belong to appellant. The accident occurred about 7:15 p. m. It was twilight, and the headlight of the engine was lit. From the section house to the water tank is about one mile. The testimony adduced by plaintiffs tended to show that the engine whistle began to blow the stock alarm about 1,000 yards away from the point of the accident, and that the train was actually stopped 300 feet beyond the point of collision. A passenger on the train at the time testified that the whistle began to sound about that distance from the point of collision, and that the air brakes were applied about the same time, but he could perceive no immediate appreciable lessening of its speed. Others, not in sight but in hearing, testified that the alarm whistle sounded for a considerable time, one placing it as long as a full minute. The substance of the engineer's statement was that he saw an object on the track ahead of the train, and he immediately shut off his steam as a precautionary measure; that when within about 700 feet of the object he saw it was a man on a bicycle, and immediately began sounding the whistle, and applied the air brakes in the emergency. That, on account of the downgrade and the speed of the train, he saw he would not be able to stop the train in time, and that his only hope was to attract the man's attention by the whistle, which he continued to sound. That he did not reverse the engine drivers, not only because it would have lessened the effectiveness of the drive brakes, but because it would have probably burst the cylinder heads and endangered the train and passengers. He stated positively that he did all he could to stop, consistent with the safety of the train, as soon as he saw that it was a man on the track, and that under the combined conditions of speed and downgrade the train could not have been stopped in time to avert the accident. As to the distance within which such a train could have been stopped, the evidence is conflicting. The court held that deceased was a trespasser, and submitted the issue of liability only on the theory of discovered peril.

Appellant requested the following special charge, and complains because it was not given: "The...