Houston, E. & W. T. Ry. Co. v. De Walt

• Decision Date: 01 December 1902
• Citation: 70 S.W. 531
• Parties: HOUSTON, E & W. T. RY. CO. v. DE WALT.
• Court: Texas Supreme Court

70 S.W. 531

HOUSTON, E & W. T. RY. CO. v. DE WALT.

Supreme Court of Texas.

December 1, 1902.

Certified questions from court of civil appeals of First supreme judicial district.

Action by Coleman B. De Walt against the Houston, East & West Texas Railway Company. There was judgment for plaintiff, and on appeal the court of civil appeals certified questions.

The following is a statement of the questions certified:

"To the Honorable Supreme Court: In the above-styled cause, now pending in this court on appeal from the district court of Polk county, we respectfully certify for your decision the questions hereinafter propounded, which arise upon the following statement of the pleadings, evidence, and charge of the court. Plaintiff sued to recover damages for personal injuries alleged to have been caused by the negligence of defendant's employés. All of the petition containing allegations of negligence on the part of the defendant is as follows: "That on the day and date last aforesaid, to wit, on the ____ day of November, 1897, plaintiff was an employé of said defendant, in the town of Livingston aforesaid, acting and doing the business of porter and servant at defendant's station at

said Livingston under and subject to the order and control of said J. E. Burton, defendant's agent aforesaid; that on the day and date last aforesaid it was the duty of plaintiff, when ordered or directed so to do by said J. E. Burton, to seal the doors, seal and cleat or nail up the windows, of freight cars, on defendant's railroad track at Livingston station; that on the day and date last aforesaid said agent of defendant, J. E. Burton, ordered and directed plaintiff to seal a door, seal and cleat or nail up the windows, of a certain loaded freight car on defendant's railroad track, at or near said Livingston depot or station; that plaintiff obeyed the order or direction of said agent, and sealed the door of said car as directed; that it then became the duty of plaintiff to seal, cleat, or nail up the window of the same car; that, to do this, plaintiff carefully, and in the manner such work was usually and ordinarily done, got upon and placed one foot on the deadwood at the end of said car, and the other foot on an object on the end of the car which he could rest it on, being the usual way such work is done; that plaintiff had sealed and partially cleated or nailed up the window of said car, and was proceeding to finish the cleating or nailing up of said window of the car, and using due and reasonable care and prudence in doing this, when defendant's locomotive of a freight train, ran by its engineer, John McBride, and with the tender and freight car or cars attached, on defendant's railroad track, unknown to plaintiff, and without blowing the locomotive whistle, and without ringing the locomotive bell, as required by statute, carelessly, negligently, and without warning or notice to plaintiff, and unknown to plaintiff, though plaintiff was acting carefully, by means of the locomotive aforesaid, ran a freight car, unseen and unknown to plaintiff, and unheard by him, with great force, against the car on which plaintiff was standing and working as aforesaid, and thereby, and by reason thereof, jostled, jolted, and violently knocked plaintiff off of the end of said car on which he was working, onto the track of defendant's said railroad; that before plaintiff could save himself, though he used his utmost exertion to do so, he fell, and his left foot was caught and crushed between the drawheads of two cars, caused by the momentum of the car on which plaintiff was standing, and from which he was knocked as aforesaid, and the wheel or wheels of one of plaintiff's cars, put in motion by reason of the force aforesaid, ran over, crushed, and mangled plaintiff's left leg or limb, from and including his foot up to the knee joint, so that the said left leg or limb had to be, and was, by skilled physicians, amputated above the knee on the same day of said injury; that plaintiff, from and caused by said injury, suffered great physical pain and mental anguish, in having his lower limb or leg crushed, torn, mangled, and amputated as aforesaid; that plaintiff suffered great physical pain and mental anguish from said crushing of his leg and amputation thereof for the space of three weeks, during which time he was confined to his bed, to his damage, from caused aforesaid, fifteen thousand dollars. Plaintiff alleges that when he was ordered or directed as aforesaid to seal the door, to seal and cleat or nail up the window, of said car, and when he went onto the railroad track to do it, the said railroad track on which said car stood was clear of said locomotive and all danger; that plaintiff, in obeying the order aforesaid, expected, as he had a right to do, that the employés of defendant then on the ground at and near the said station, and on the train there, and at the depot, knew that plaintiff was doing the work that he was directed and ordered to do as aforesaid, and that in case of any danger that they would give plaintiff due notice and warning; that especially so as loaded freight cars, the doors thereof had to be sealed, and the windows sealed and cleated or nailed, before being pulled out from the said station; that the car aforesaid had been pulled out by the locomotive in charge of the engineer thereof, and the trainmen thereof, from the side or switch track, while loaded, to the main track, with one door unsealed and one window uncleated and unnailed, which by reasonable care and common observation would and should have been known, and was known, by defendant's employés operating and in charge of said train, and by defendant's said engineer, and by said J. E. Burton, and by the conductor of said train, and by the entire train crew, all then being on the ground. Plaintiff alleges that defendant's engineer and employés in charge of said train, and said J. E. Burton, and the conductor of said train, and the crew aforesaid, all then being at and on the ground, and in rescue distance to plaintiff, did know the facts stated, and, with gross negligence, they failed and neglected to warn plaintiff of his danger and give him notice of the approach of said locomotive, they and each of them well knowing plaintiff's peril and situation at the time of the accident aforesaid; and this though plaintiff expected and relied on them to so give plaintiff notice and warning in case of danger or approaching danger. Plaintiff alleges and charges the facts to be that defendant's said depot, station, main track, side track, switches, and turnouts, at about and near where plaintiff was injured, were at the time of said injury situated in and a part of the public streets and blocks and avenues of the town of Livingston; that southerly and northerly from the point on the main track aforesaid, where plaintiff was injured, defendant's said main line of its railroad at a point less than eighty rods crossed public streets and public crossings and public roads leading across said railroad track east and west; that defendant's train or locomotive, in pulling cars from its side track aforesaid, had to, and did, pass southwardly and over and across the said street and public road southwardly from the point where plaintiff was injured, and less than eighty rods therefrom; that from one street crossing passing by where plaintiff was injured to the next street or public crossing northwardly was less than eighty rods; that defendant's said engineer and the employés in charge of said train negligently and with gross carelessness failed to blow the whistle of the locomotive at the distance of at least eighty rods from said crossings above and below plaintiff; that defendant's said engineer and employés in charge of the locomotive aforesaid carelessly and with gross negligence failed to ring the bell of said locomotive at the distance of at least eighty rods from said crossing, and so neglected to keep said bell ringing until the locomotive crossed each of said crossings; that at the point where the plaintiff was injured on the main track, for a distance of eighty rods north, and more than eighty rods south therefrom, was used (the entire main track of defendant's railroad), by defendant's consent and permission, and had so been used for fifteen years, as a public road, a public passway, and a public walk, by the public generally in going to defendant's depot, and the hotel at the depot; that defendant's employés ran its said engine at the time plaintiff was injured up and over said public way, and failed and neglected to blow the whistle or ring the bell during the time the locomotive was on or passing over said public way, up to where plaintiff was knocked off of said car; that had defendant's said engineer and employés in charge of said train rung the bell or blowed the whistle at said crossing, or over said public road and public passway, along and over said railroad track, plaintiff would have known and been warned of the approaching locomotive and train, and would have escaped injury by getting off of said car before the same was struck as aforesaid.

"In answer to these allegations the defendant filed the following plea: `And for answer herein, defendant denies, all and singular, the allegations in plaintiff's said amended petition contained, and of this it puts itself upon the country. And specially answering, this defendant says that plaintiff's injuries, of which he complains, were brought about and were the result of his own negligence and carelessness, in this: that the two cars between which plaintiff was standing just immediately before his alleged injuries, and from which he claims to have at that time fallen, were loaded with cotton, and had been so loaded for some hours prior thereto; that plaintiff himself had loaded these two cars while they were on the side track at Livingston; that it was plaintiff's duty, immediately after loading the same, to...