Houston & Tex. Cent. R.R. Co. v. Smith

• Decision Date: 18 November 1879
• Citation: 52 Tex. 178
• Parties: HOUSTON AND TEXAS CENTRAL RAILROAD CO. v. WILLIAM S. SMITH.
• Court: Texas Supreme Court

52 Tex. 178

HOUSTON AND TEXAS CENTRAL RAILROAD CO.

v.WILLIAM S. SMITH.

Supreme Court of Texas.

Nov. 18, 1879.

ERROR from Robertson. Tried below before the Hon. Spencer Ford.

Suit brought April 21, 1877, by Smith, defendant in error, to recover of the Houston and Texas Central Railroad Company $25,500 damages for personal injuries, claimed to have been caused on the 3d of January, 1877, within the corporate limits of Calvert, by the Houston and Texas Central Railroad Company, whose employees in operating and running an engine and train of cars over the company's track struck Smith, who at the time was walking along and over said track, throwing him off and inflicting upon him serious injuries.

Defendant answered by general demurrer, plea of not guilty, and plea of contributory negligence.

Plaintiff alleged in his petition that at the time he was injured he was walking along and over defendant's track in the corporate limits of Calvert, with his face turned in a northerly direction, and that while traveling, unmindful of any danger, defendant's engine and cars approached from a southerly direction at a speed rapid and contrary to the ordinances of Calvert, struck him, threw him with great violence from the track, crushed his foot, destroyed one of his eyes, and otherwise injured him; and that by reason of a north wind prevailing at the time, and the noise made by the machinery of an oil mill near by, he did not and could not hear the engine and cars as they approached him.

Defendant's demurrer was called to the attention of the court, and overruled.

The evidence of plaintiff showed that at the time he was injured he was walking along the railroad track going north; that the train which struck him came from the south; that he had walked on the track about three hundred yards before he was struck; that he may have been drunk; expected he was; that he did not see or hear the train which struck him, or hear the noise of the oil mill near by; that he was not paying attention to the mill; was not paying attention to anything; that there was a street or road on the right-hand side of the track, but he was walking on the track; that he knew nothing for ten days afterwards; had his foot amputated, lost his left eye, and had his olfactory nerves destroyed; that the engineer did not blow the whistle or ring the bell; that the train was running sixteen miles an hour, and he could not escape from it.

The witness Volenta (plaintiff's witness) testified that when plaintiff was run over he (witness) was in his room, looking through the window; that his attention was first attracted by the whistling of the train; that they whistled three times; thought the train was going eight or ten miles an hour; had himself been a brakeman and engineer two years of his life on a railroad; the whistling was an alarm signal, and meant “put down brakes and stop”; that it was about sixty yards from where he first heard the alarm signal sounded to where he found plaintiff lying; could not see the cars strike plaintiff; after he was struck the train went three hundred yards; when running at six miles an hour, a train can be stopped in its own length; at the rate the train was going, it could not have been stopped from the time it whistled before plaintiff was struck; it was a cold evening and a cold wind; the oil mill was in operation; did not know whether it was running when plaintiff was struck; heard three whistles at the window; went to the door at once, and saw plaintiff lying by the track; they whistled all the time after he left the window.

May 30, 1878, there was verdict for plaintiff Smith for $5,000, and judgment entered in accordance.

Defendant made a motion for a new trial, and it being overruled, gave notice of appeal to the Supreme Court.

The case came up on error.

Davis, Beall & Kemp, for plaintiff in error.

I. The court erred in overruling defendant's demurrer for the reasons stated in the first assignment of error. (Shear. & Red. on Neg., p. 491; Mulherrin v. D. L. & W. R. R. Co., 15 Am. R. R. Reps., 456; Illinois Central Railway Co. v. Godfrey, Am. Law Reg. (N. S.) for May, 1875, vol. 14, p. 290; O'Donnell v. Providence and Worcester R. R. Co., 6 R. I., 211; Railroad Co. v. Norton, 12 Harris, (24 Penn. St.,) 465.)

II. The court erred in the third paragraph of the charge, wherein the jury were instructed: “If, however, plaintiff was guilty of some slight degree of negligence not amounting to a want of ordinary care, that is, such care as is usually exercised by prudent men in like circumstances, and the agents and employees of defendant failed to exercise ordinary care, in consequence of which plaintiff was injured, find for plaintiff;” because the instruction was not applicable under the facts proved, since the evidence proved the absence of ordinary care on the part of plaintiff, and established gross negligence on his part; and further, because the instruction given is not law. (Shear. & Red. on Neg., secs. 33, 34, 37, 487, note 3; Lacy's R. R. Dig., sec. 47, p. 451.)

Collard & Field and W. H. Hamman, for appellee.

I. There was no error in overruling defendant's general demurrer to plaintiff's petition. The exception was in favor of general demurrer. (Texas and Pacific Railway Co. v. Murphy, 46 Tex., 360.)

II. The third paragraph of the charge was good law and applicable to the case, viz.: “If, however, plaintiff was guilty of some slight degree of negligence, not amounting to a

want of ordinary care, that is, such care as is usually exercised by prudent men in like circumstances, and the agents and employees of defendant failed to exercise ordinary care, in consequence of which plaintiff was injured, find for plaintiff.” (Texas and Pacific Railway Co. v. Murphy, 46 Tex., 368; Lacey's Railway Dig., 458; Id., 460; Id., 282; Philadelphia and Trenton Railroad Co. v. Hagan, 47 Penn. St., 244; Whiton v. Chicago and Northwestern Railroad Co., 2 Bissell, (U. S.,) 282; Illinois Central Railroad Co. v. Middlesworth, 46 Ill., 494;38 Ill., 370;51 Ill., 333;49 Ill., 500;29 N. Y., 383, 391;35 N. Y., 9; Shear. and Red. on Neg., secs. 25, 29, 31-36; Reeves v. Delaware, Lackawanna and Western Railroad Co., 30 Penn., (6 Casey,) 461.)

III. In the fourth paragraph of the charge of the court, the court gave the law applicable to intoxication of plaintiff and negligence of plaintiff contributing to his injuries in terms as favorable as, or more favorable than, defendant could ask; and the charge asked by defendant was not the law of the case, as it did not present the whole case, and took the question of fact of negligence away from the jury.

The fourth paragraph of the charge is: “If plaintiff went upon and was walking along the track of defendant's road, at a place not used as a crossing, and the engineer signaled before the plaintiff was struck, and in time for plaintiff to have got off before he was struck, and he refused to do so, or was unable, in consequence of intoxication, to understand the signal or step from the road, and was run upon and injured, he cannot recover.” (Texas and Pacific Railway Co. v. Murphy, 46 Tex., 365;70 Penn., 357; Weil v. Express Co., 27 Phil., 245; 2 Redfield on Law of Railroads, 249; Robinson v. New York Central Railroad Co., 65 Barb., (N. Y.,) 146.)

IV. The error complained of in the fourth assignment is not well taken, because plaintiff Smith says he did not hear the whistle.

Smith says he did not know what kind of train ran over him; did not see it; never did see it; did not hear steam whistle or bell ringing on the train. (Texas and Pacific Railway Co. v. Murphy, 46 Tex., 360.)

V. There was no error in overruling defendant's motion for a new trial, and there was no evidence that established the fact that plaintiff was guilty of such contributory negligence as debarred his recovery. (Texas and Pacific Railway Co. v. Murphy, 46 Tex., 360-370; 2 Bissell, (U. S.,) 282; Jetter v. New York and Harlem Railroad Co., 2 Abbott, (N. Y. Ct. of Ap.,) 458; Pennsylvania Railroad Co. v. Kelly, 31 Penn. St., 372; 45 Mo., 255;50 Mo., 461;17 Ind., 102.)

BONNER, ASSOCIATE JUSTICE.

The first assignment of error is, that “the court erred in overruling defendant's demurrer to plaintiff's...