Int'l & Great N. Ry. Co. v. Gray, Case No. 1857.

• Decision Date: 15 December 1885
• Docket Number: Case No. 1857.
• Citation: 65 Tex. 32
• Court: Texas Supreme Court
• Parties: INTERNATIONAL AND GREAT NORTHERN RAILWAY CO. AND MISSOURI PACIFIC RAILWAY CO v. JOHN J. GRAY AND WIFE.

65 Tex. 32

INTERNATIONAL AND GREAT NORTHERN RAILWAY CO. AND MISSOURI PACIFIC RAILWAY CO

v.JOHN J. GRAY AND WIFE.

Case No. 1857.

Supreme Court of Texas.

Dec. 15, 1885.

APPEAL from Cherokee. Tried below before the Hon. James I. Perkins.

This action was brought in the District Court of Cherokee county by John J. Gray and his wife, Mary A. Gray, for themselves, against the International and Great Northern Railroad company and the Missouri Pacific Railway company, to recover actual damages for an injury inflicted upon Mrs. Mary A. Gray, one of the plaintiffs, and for compensation for the death of a child of the plaintiffs, and the loss of service of another child, caused by the negligence of the servants of appellants.

The defendants below plead in defence in substance, viz:

1. A general denial and plea of not guilty.

2. That plaintiffs proximately contributed by their own negligence to the injury complained of.

3. That after the servants discovered plaintiffs' danger they did everything possible to avoid it.

The case was tried on the 24th of December, 1884, and resulted in a verdict and judgment for plaintiffs for $2000.

Jno. Young Gooch, for appellants, cited: H. & T. C. R'y Co. v. Richards, 59 Tex., 373;Williams v. T. & P. R'y Co., 60 Tex., 205; Pierce on Rail., 338.

Templeton & ??ollier, for appellees, cited: 2 Thompson on Neg., p. 1232, sec. 5, & pp. 1172-3, secs. 18, 19, and authorities cited; Prince v. I. & G. N. R'y Co., Austin Term, 1885; Tex. Ct. Rep. for May, 1885; T. & P. R'y Co. v. Graves, same; T. & P. R'y Co. v. Murphy, 46 Tex., 357; G., H. & S. A. R'y Co. v. Smith, 59 Tex., 406; Thompson on Neg., vol. 2, pp. 1105, 1108; City of Galveston v. Posnainsky, 62 Tex., 134; T. & P. R'y v. Chapman, 57 Tex., 75; H. & T. C. R'y Co. v. Wilson, 60 Tex., 142.

WILLIE, CHIEF JUSTICE.

This case comes before us upon one assignment of error only of which we can take notice, viz: “The verdict of the jury is manifestly contrary to the law and evidence, for the uncontradicted evidence shows that the plaintiffs, by their negligence, contributed proximately to the injury complained of.”

It seems to be conceded that there was negligence in operating the train that collided with the hand-car, and the case is rested by the appellants upon the contributory negligence of the parties injured by the collision. The question as to negligence in the operation of the train by the company's employes, and that as to the contributory negligence of the plaintiffs, may be considered together, as they must both depend for solution upon the relative duties due from the parties to each other.

The plaintiffs were lawfully upon the hand-car at the time of the collision. Whether they were entitled to be considered passengers, with all the rights which that position implies, it is not necessary for us to consider; they were on the car by permission of the company, as is fully shown by the evidence. The car itself was in the regular performance of its duty, and was required to make this very trip by the order of the company. It was, therefore, rightfully on the track at the place and time of the collision, and the plaintiffs were lawfully on board of it. The fact that the train was behind time did not require that the hand-car should keep off the track, but it was obliged to be there in the performance of its duty to the company, no matter whether an expected train of the company was behind time or not.

The train was behind time, as had generally been its habit. It had passed a road crossing, before reaching which it was required by law to sound a whistle, which requirement seems to have been complied with by all trains upon all former occasions; it was nearing a bridge and trestle work, and the rules of the company required it to moderate its speed to four miles an hour, and it had passed a sign-board, giving it directions to that effect; it had never gone at a speed of more than six or eight miles an hour at the place where the accident happened, yet on this occasion it was running at the rate of twenty miles an hour. Without giving any signal or checking its speed, it crossed the road, ran into a deep cut, where the track made a sharp curve, and there collided with the car, which was but a short distance from the crossing, and produced the injuries of which the plaintiffs complain.

The acts of negligence on the part of the train were, the failure to give the statutory signals at the crossing, and its excessive rate of speed at the time and place of the accident.

The only act of negligence, if any, that can be alleged against the persons in charge of the hand-car, was the omission to send out flagmen whilst in the cut, so as to warn the train of its presence.

The evidence does not show that it was the imperative duty of the persons in charge of a hand-car such as the one upon which the plaintiffs were riding, to send out flagmen before and behind in situations like the one in which this car was placed when the collision occurred. The regulations of the company required that hand-cars and track-cars should be protected by flagmen when by reason of fog, sharp curves, or the like, risk was involved; and added that this was particularly necessary in case of loaded track-cars. It was, however, proved that in practice flagmen were sent out only in cases when a loaded track or hand-car was being propelled upon the railroad. The reason given for this was that track-cars, or loaded hand-cars, could not be easily taken off the track, and this made it necessary to send out flagmen. It was,...