Houston & T. C. R. Co. v. O'Donnell

• Decision Date: 25 October 1905
• Citation: 90 S.W. 886
• Parties: HOUSTON & T. C. R. CO. v. O'DONNELL.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

90 S.W. 886

HOUSTON & T. C. R. CO. v. O'DONNELL.^*

Court of Civil Appeals of Texas.

October 25, 1905.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Burnet County; Clarence Martin, Judge.

Action by W. F. O'Donnell against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Rehearing denied December 6, 1905.

S. R. Fisher and Baker, Botts, Parker & Garwood, for appellant. T. E. Hammond and Ike D. White, for appellee.

EIDSON, J.

This is an action by appellee against appellant to recover damages for personal injuries alleged to have been sustained by him through the alleged negligence of appellant and its servants. Appellant's defenses were a general demurrer and special exceptions, a general denial, and pleas of contributory negligence on the part of the plaintiff. The trial before the court and jury resulted in a verdict and judgment for plaintiff in the sum of $6,000.

Appellant's first assignment of error complains of the action of the court in overruling its general demurrer to plaintiff's first amended original petition. Plaintiff alleged that he had gone on appellant's right of way and track for the purpose of examining certain gates, which opened from the right of way into his fields on either side of said right of way; that he had stock in said fields, and he desired to keep said gates in good condition, so as to prevent his stock from going onto appellant's right of way and track; that as he was returning from said gates, and walking at the ends of the cross-ties on defendant's track, and had arrived at a point about 12 or 14 steps from the public crossing, traveling with his back in the direction from which the train came, defendant's train, which was running at the rate of about 60 miles an hour, struck him, and caused the injuries alleged in his petition; that he walked along and by the side of the cross-ties, and not on defendant's track, so that should he hear or see a train approaching, he could easily and without danger to himself, step out of the way of any moving train and avoid being injured; that had defendant's servants sounded the whistle on the engine anywhere within 80 rods of said crossing, plaintiff could and would have heard the same, and could and would have stepped aside and avoided his injuries. That plaintiff looked and listened for an approaching train, and seeing none, or any evidence thereof, started for the public road crossing on his way home, and had arrived within 12 or 14 steps of said crossing, when appellant's train, which was running at a very high and reckless rate of speed, to wit, about 60 miles an hour, struck him and caused the injuries alleged in his petition; that although the plaintiff was in plain view of defendant's servants in charge of the engine pulling said train, and could have been seen, and was seen, continuously by defendant's said servants for more than 600 yards before said train reached him, and although plaintiff was between defendant's whistling post and said crossing, and that although plaintiff relied upon defendant's said servants obeying the law and sounding the whistle on the engine pulling said train, as they are and were required to do, and although it was dangerous to approach said crossing at the rate of speed traveled by the defendant's cars at said time, defendant's said servants recklessly and carelessly approached said crossing at the rate of speed above mentioned, and recklessly, carelessly, and wantonly failed to sound the whistle or ring the bell on the engine drawing said train, and carelessly and wantonly failed and refused to give plaintiff any warning whatever of the approach of said train, but with a reckless and careless disregard of their duty and plaintiff's rights and safety, carelessly, wantonly, and without the use of ordinary care, ran plaintiff down without any fault or negligence on his part, and caused the injuries alleged in his petition; that defendant's employés negligently and carelessly failed to warn plaintiff of the approach of said train by sounding the whistle or ringing the bell, and negligently failed and refused to use ordinary care in stopping or trying to stop said train, after they had discovered plaintiff's peril; and that appellant could have stopped said train after discovering plaintiff's peril by the use of ordinary care and the means at hand. We are of opinion that these allegations are sufficient as against a general demurrer.

Appellant's second assignment of error complains of the action of the court in overruling its first special demurrer and exception to plaintiff's petition. This special exception is addressed to that part of plaintiff's petition which alleges that defendant had fenced its right of way and had failed to erect gates in said fences, and that defendant had made openings in said fences. Appellant's contention being that said allegations cannot operate if true, to make plaintiff's trespass on its right of way and premises lawful. Plaintiff's petition alleged that his fields were on the north and south sides of and adjacent to defendant's right of way, and that he had stock in said fields, and that defendant's right of way was fenced, and that there were gates opening from the right of way into plaintiff's fields, and that it was necessary for plaintiff to cross defendant's railroad track and right of way in going to and from his cultivated land on the north side of said track and right of way, and that defendant had fenced its right of way along the two sides thereof with cedar posts and five barbed wires, and failed to erect gates and leave openings in said fences, and thereby deprived plaintiff of access to his said farm on the north, he having no other means of reaching said portion of his said farm, except by crossing said right of way; that defendant negligently and carelessly cut said wire fence about 48 yards east of the Burnet and Marble Falls public road, and refused to erect gates at said opening; that plaintiff had stock in his said fields, and to prevent their wandering upon defendant's track and right of way, he was compelled to, and did, close said gaps, by erecting temporary wire gates across the same; that owing to the width of the openings made by said defendant in said fence, and the number of wires necessary to construct said gates, the same were unwieldy, and required two persons to open the same, and that at the time of receiving his injuries, plaintiff was on defendant's right of way for the purpose of examining said gaps. We think these allegations show that plaintiff was, at the time of the accident, lawfully upon appellant's track or right of way, and was not a trespasser.

Appellant's third assignment of error complains of the action of the court below in overruling its third special demurrer and exception to plaintiff's petition. Appellant contends by this exception that that part of plaintiff's petition which alleges that owing to certain impediments on defendant's right of way, it was impossible for him to walk anywhere, except along the ends of the ties, is insufficient in law, because plaintiff was without right on said right of way, and therefore, could not legally complain of the condition of any part of it. Plaintiff having alleged facts sufficient to show that he was lawfully on defendant's right of way, it is unimportant as to where he walked; but there was no evidence as to the condition of defendant's roadbed or right of way, and therefore the action of the court complained of, if error, was harmless.

By its fourth assignment of error the appellant contends that the court erred in overruling its fourth special demurrer and exception to plaintiff's petition. This exception is addressed to that part of plaintiff's petition which alleges that defendant's employés in charge of its train failed to give the statutory crossing signals in approaching the place where plaintiff was struck by its engine, and alleges that such allegations are insufficient in law, upon the ground that it appears from plaintiff's other allegations in his petition that he was not on a crossing, but was a trespasser on defendant's right of way and premises, and that defendant owed him no duty to give such signals. Plaintiff alleged that at the time of his injury he was between defendant's whistling post and the public road crossing, and within 12 or 14 steps of the latter, and that defendant failed to give the statutory signals, and but for such failure he would not have been injured. Hence it was not error for the court to overrule this special exception. Railway v. Taff, 31 Tex. Civ. App. 657, 74 S. W. 89; Railway v. McVey (Tex. Civ. App.) 81 S. W. 991.

By its fifth assignment of error appellant insists that the court below erred in overruling its fifth special demurrer and exception to plaintiff's petition. By this special exception appellant contends that so much of plaintiff's petition as attempts to allege that immediately prior to the accident in which plaintiff is alleged to have been injured, defendant's train was being operated at a high and dangerous rate of speed, is insufficient in law, because defendant owed no duty to plaintiff, a trespasser, to operate its trains at any particular rate of speed. Plaintiff's petition contains sufficient allegations to show that he was lawfully on defendant's right of way, or track; hence, there was no error in the action of the court complained of.

By its sixth assignment of error appellant contends that the court below erred in admitting in evidence from the deposition of Wm. F. O'Donnell, the testimony to the effect that he lived on the Burnet and Marble Falls public road, which runs north and south. The company's road intersects or crosses said public road about 476 yards from witness' yard gate to the center of the railroad crossing on said public road, upon the ground that said testimony was irrelevant and immaterial. This testimony was...