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

• Decision Date: 16 October 1906
• Citation: 97 S.W. 1067
• Parties: HOUSTON & T. C. R. CO. v. RAMSEY et al.
• Court: Texas Court of Appeals

97 S.W. 1067

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

Court of Civil Appeals of Texas.

October 16, 1906.

Rehearing Denied November 22, 1906.

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

Action by H. S. Ramsey and another against the Houston & Texas Central Railroad Company. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

See 81 S. W. 825.

Baker, Botts, Parker & Garwood and Andrews, Ball & Streetman, for appellant. Doremus & Butler and C. H. Steele, for appellees.

REESE, J.

On or about August 3, 1903, John Ramsey came to his death by being run over by an engine pulling a regular passenger train of the Houston & Texas Central Railroad Company. Deceased was at the time riding on a railroad velocipede, going south from the watch-tower at the crossing of the International & Great Northern Railroad and the Houston & Texas Central Railroad, just below College Station. The engine which struck and killed him was attached to the regular passenger train going south. The train was due at College Station at 7 o'clock p. m., and arrived there about 10 minutes later. The accident occurred between one and two miles south of that point. This suit is brought by the father and mother of the said John Ramsey to recover damages for his death. It is alleged, in substance, that the engineer in charge of the engine discovered the presence of deceased upon the track, and his peril from the approaching train, in time to stop the train by the use of the means under his control, with safety to the passengers and train, and thus avoid injuring the deceased, and that he failed to do so, but recklessly and willfully ran the deceased down with his engine. Defendant answered by general demurrer, general denial, pleas of contributory negligence, and specially denied that the death of deceased, Ramsey, was caused by the negligence of defendant, in that defendant, after the discovery of the peril of deceased, used every means in its power consistent with the safety of the train to avoid the injury to deceased. Upon trial before a jury there was a verdict for plaintiffs for $2,000, and from the judgment defendant prosecutes this appeal.

It is apparent from the record that the deceased was a trespasser upon appellant's track at the time he was killed, and that appellant owed him no duty except to use all the means in its power, consistent with the safety of the train, to avoid injuring him, after his peril was discovered. Ry. v. Breadow, 90 Tex. 29, 36 S. W. 410; Ry. v. Staggs, 90 Tex. 458, 39 S. W. 295. This was recognized by the trial court in the submission of the case to the jury, and is not controverted by appellees.

The issues were: (1) Did Wilson, the engineer in charge of the engine, discover the peril of John Ramsey in time to have avoided the injury to him by the use of all of the means under his control for stopping the train, consistent with the safety of the train? and (2) did the engineer, after actually discovering the peril of Ramsey, use all of the means under his control for stopping the train, consistent with its safety?

The first two assignments of error complain of the action of the trial court in overruling appellant's motion for a new trial on the grounds that (1) the verdict is unsupported by the evidence and contrary to the uncontradicted evidence, and (2) that it is contrary to the overwhelming weight and preponderance of the evidence, and manifestly the result of passion and prejudice on the part of the jury.

At the time of the accident the train was running not less than 35 miles, and probably 45 miles, an hour on a straight track, with nothing to obstruct the view between the engineer on the engine and Ramsey on the velocipede. The wind was from the south, the engine going south, and the time was a little after sundown. Some of the witnesses place it earlier, but the testimony most probably true, being that of the engineer as to the scheduled time of the arrival of the train at College Station at 7 o'clock p. m., which is not disputed, and the fact that on the day of the accident the sun set at 6:56 o'clock p. m., showed the time to have been a little after sunset. The engineer further testified that he arrived at College Station 11 minutes late, which is not disputed by the evidence, and that he was in consequence running fast to make up the time. One of appellees' witnesses, however, a passenger on the train, fixes the time as early as 3 o'clock p. m., and the other witnesses vary in their testimony from that time up to about sundown. There was a road crossing which was shown to be 999 yards north from the point where Ramsey was struck. South of that point is an elevation in the track which the engineer calls a "hog-back," the top of this hog-back being, according to a plat introduced in evidence showing these distances, the correctness of which is not disputed, 750 yards from where Ramsey was struck. The engineer testified that as soon as he saw the object on the track ahead of him he blew the whistle and shut off steam, but did not discover, at that time, that the object was a man; that as soon as he saw it was a human being he made an effort to stop the train; that he applied the emergency with full force, being all the power he had, and that his whole attention was directed to nothing else but trying to stop the train and give the alarm for the man to get off the track.

The engineer was not required to resort to any means to stop his train as soon as he saw that there was a...