International & G. N. R. Co. v. Brice

• Decision Date: 03 June 1908
• Citation: 111 S.W. 1094
• Court: Texas Court of Appeals
• Parties: INTERNATIONAL & G. N. R. CO. v. BRICE

111 S.W. 1094

INTERNATIONAL & G. N. R. CO. v. BRICE

Court of Civil Appeals of Texas.

June 3, 1908.

Rehearing Denied July 1, 1908.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by Frank Brice against the International & Great Northern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

See 97 S. W. 461.

Jno. M. King and Hicks & Hicks, for appellant. John Sehorn, for appellee.

McGOWN, Special Justice.

Appellee's injuries resulted from a collision between two of the company's passenger trains. Train No. 7, headed south, was standing at the station of Kyle for the purpose of receiving and letting off passengers at that place, when train No. 5, also headed south, operated by Brice as engineer, ran into it, causing the wreck and injuring Brice. He lost one foot and slightly injured one hand. Upon the last trial the jury awarded him as damages the sum of $25,000. He bases his cause of action upon the theory that No. 7, having overstayed its time at the station, owed him the duty to protect his train, approaching from the rear, by sending back a flagman and by placing torpedoes upon the track to give notice of its position, which it failed to perform. Appellee contends that the company cannot dispute the facts alleged, because it failed to file a general denial in answer; but the contention cannot be sustained, for the reason that the allegations were traversed by special answer. The company alleged: That, when injured, Brice was working under and subject to certain schedule and rules issued by it controlling its employés in the operation of trains, which rules fixed 7:01 a. m. as the time for No. 7 to leave Kyle, and permitted it to make its regular stop as a passsenger train on the main line without sending back a flagman or placing torpedoes upon the track, and which also required No. 5, Brice's train, (1) to run into Kyle 10 minutes behind No. 7, or not sooner than 7:11, and (2) to approach Kyle at all times with the train under control, expecting to find another train on the main track; that Brice, in violation of said rules, ran his train into Kyle before 7:11 a. m., at a dangerously high rate of speed, without having it under control, knowing that he encroached upon the time of No. 7 at Kyle; and that these acts on his part caused the collision and his injuries.

The issues joined by these pleadings necessarily put in issue the facts alleged by Brice, for their determination involves and depends upon the time when the collision actually occurred, whether before or after 7:11 a. m. Prior to that time, No. 7 was within its own time under the rules pleaded. The abrogation of these rules was pleaded by Brice; but, as the trial court instructed the jury that they were binding upon him, the jury could not have passed upon that issue, and we must treat them as in full force. So tested, it is apparent the duty of the train crews, one to the other, was measured by these rules. Brice having continued in the company's service with full knowledge of them, there arose under the law an implied agreement on his part to obey and enforce them. He was bound by their terms until abrogated with the consent, expressed or implied, of the company. Under them, as stated, No. 7 had the right to remain at Kyle till 7:11 on its regular stop as a passenger train without sending back a flagman or placing torpedoes upon the track; while Brice, with train No. 5, was required to stay 10 minutes in the rear of No. 7, and thus not to run into the station sooner than 7:11, and to approach the station at all times with his train under control expecting to find the main track occupied by another train. Appellee's right to recover, then, under his allegations and the rules, depends wholly upon whether the collision occurred before or after 7:11 a. m., for, if he ran into the station before that time, no duty rested upon the crew of No. 7 to protect No. 5, and the company cannot be charged with negligence from the failure of its employés to send back a flagman or place torpedoes upon the track; and if he ran into the station before that time, or without having his train under control, he did so in violation of the rules and assumed the risk incident thereto, and was also prima facie guilty of contributory negligence as a matter of law. The burden of proof, therefore, was upon Brice (1) to establish by the preponderance of evidence that the collision occurred after 7:11, and that by reason thereof the company was guilty of negligence in not sending back a flagman or placing torpedoes upon the track; and (2) the burden was upon him, if his own evidence established a prima facie case as a matter of law of contributory negligence on his part, to overcome that fact by showing facts from which, upon the whole case, the jury could find him free from negligence. Railway v. Shieder, 88 Tex. 163, 30 S. W. 902, 28 L. R. A. 538; Selman v. Railway (Tex. Civ. App.) 101 S. W. 1033.

Appellant's twenty-first assignment, based upon the refusal of the trial court to instruct for the defendant; its twenty-third assignment, based upon the refusal of the trial court to grant a new trial because the evidence failed to show that it was the duty of the crew in charge of No. 7 to send back a flagman or place torpedoes upon the track; its twenty-fourth assignment, based upon the refusal of the trial court to grant a new trial because the evidence showed Brice guilty of contributory negligence in not having his train under control; and its twenty-fifth assignment, based upon the refusal of the trial court to grant a new trial because the evidence showed that Brice violated the 10-minute rule, and ran into Kyle before 7:11 a. m.—each raises the question as to whether or not the appellee has discharged the burden of proof imposed upon him, or can maintain his judgment on the evidence in the case.

The appellee, in order to prove that the collision occurred after 7:11 a. m., relies upon his own testimony and that of J. A. Cunningham. Brice testifies: That when one mile north of Kyle he looked at his watch. It was 7:10. That when he got to Kyle, after he struck the train, it must have been 7:12. In this he claims corroboration from Cunningham, who testifies that when he looked at his watch, north of Kyle, it was between 7:10 and 7:11, and that it was a minute and a half or two minutes before they reached Kyle. The distance traversed after 7:10, as shown by Brice, was about one mile, and this was run in two minutes according to him, and from one and a half to two minutes according to Cunningham. This speed equaled or exceeded 30 miles an hour. Again, he testifies that the schedule time was 35 miles an hour between Buda and Kyle (or about 14 minutes), that he was running only 20 miles an hour, and at 7:10 he reduced his speed to 12 miles an hour, and that when the accident occurred he was...