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

• Decision Date: 11 January 1893
• Citation: 21 S.W. 58
• Parties: INTERNATIONAL & G. N. R. CO. v. KUEHN et al.
• Court: Texas Court of Appeals

21 S.W. 58

INTERNATIONAL & G. N. R. CO. v. KUEHN et al.

Court of Civil Appeals of Texas.

January 11, 1893.

Appeal from district court, Comal county; Thomas M. Paschal, Judge.

Action by Fredrike Kuehn and others against the International & Great Northern Railroad Company. Plaintiffs had judgment, and defendant appeals. Reversed.

Fiset & Miller, for appellant.

COLLARD, J.

This is the second appeal of this case. The former is reported in 70 Tex. 582, 8 S. W. Rep. 484, to which we refer for statement of the case as there presented. The case went to trial again upon the same amended petition upon which it was submitted before, and an amendment styled a "Trial Amendment." On the last trial there was verdict and judgment thereon for plaintiff Mrs. Kuehn (now Mrs. Nolte) for $1,500, and the two minor children, Willie Kuehn and Herman Kuehn, for $2,000 each, or $5,500 in all. Defendant has appealed.

The first assigned error is that the court erred in overruling defendant's general demurrer to the petition, as amended by the trial amendment filed November 20, 1889, because it shows no cause of action. The fifth assignment of error is to the effect that the court erred in overruling defendant's special demurrers to plaintiffs' pleadings, because they do not show proper precaution to prevent injury to himself. Both of these assignments will be considered together.

On the former appeal it was held that the petition upon which the trial was had — the same now before us, the second amended petition, filed December 8, 1885 — was good. Before the last trial, on November 20, 1889, plaintiffs filed what is styled a "Substitute for Trial Amendment," in which it is alleged that "defendant and its servants saw deceased, Kuehn, attempting to cross the railroad in ample time to have checked and stopped the train, prevented the accident, and saved the life of deceased, but that defendant moved on at a rapid rate, regardless of his safety, and failed and neglected to stop the train, although it could have done so; that Kuehn did not see the train until he was ascending the steep to cross the road, and at a time when he could not, with safety, turn to the right or left, and could not stop with safety." It was also alleged that the place where the road crossed was level before the railroad was built, "and that the company failed and neglected to leave the crossing in as good order as it was, or as it might have been." These allegations were made in addition to those of the amended petition. In that petition it was shown that plaintiff was compelled to drive his wagon over the railroad at the crossing in order to reach his home; "that the crossing was within the corporate limits of the city of New Braunfels, and the ordinances of the city required trains at that point not to exceed in speed the rate of six miles an hour, and that defendant had placed a signboard to that effect at the corporate limits;" and the following: "On the said 27th day of February, 1883, at the point of intersection on the Seguin and New Braunfels road and defendant's railroad, there was a wagon crossing, which was constructed in an unskillful and negligent manner, and the top of the roadbed at said point of intersection was greatly above the level of the wagon road, and the dirt approaches to the wagon crossing were unusually and excessively steep and very difficult of ascent, and an unusual and unnecessary period of time was required for heavy vehicles to cross said track; and defendant had carelessly and negligently erected ditches, cattle guards, and fences on the side of the said crossing, so as to render the same very narrow, and dangerous for vehicles to back or turn to avoid a train of cars." Other allegations are made, showing the collision, the injury, and such facts as would complete the statement of the case. Taking all the allegations upon the subject in the amended petition and the trial amendment, it cannot be said that they show a case of contributory negligence on the part of deceased that would certainly prevent a recovery by plaintiffs, or that deceased failed to exercise such care as the occasion demanded. The amended petition, on which the first trial was had, was on former appeal held to be good. The additional fact set up in the trial amendment, that deceased saw the train while ascending the way to the crossing, when he could not turn to the right or left, or stop, with safety, does not conclusively show that the collision was caused by his negligence. His position and all his surroundings, calling for care on his part, must be considered. The steep and narrow approach; the danger of his wagon running backward, if he stopped; the impossibility of turning with safety; the speed of the approaching train, as he may have presumed it to be, according to the averment made, — are all facts to be considered in connection with the time he is alleged to have seen the train. The distance of the train from him at the time he saw it is not stated. It may be the jury, upon the facts, will conclude that he was guilty of contributory negligence in driving on after he discovered the train; but we are not prepared to say they could not do otherwise, under the facts as stated. It is not always negligence to cross a railroad track at a regular crossing in front of a moving train. All the facts and necessities of the occasion, the responsibility therefor, the knowledge or means of knowledge of the person charged with negligence, are to be considered in deciding the question. The petition presented a question for the jury, if the facts stated are true, and not one that should be decided by the court on demurrer.

Before the trial plaintiffs filed a motion to exclude parts of the answer of defendant's witness Jones, on the ground that the question suggested the answer, and assumed that the bridge was crossed, the bell rung, and the whistle blown. The answer of the witness was that "the train made a good deal of noise, [crossing the bridge,] and ringing the bell, [and in the usual travel along the road.]" The court struck out the portions of the answer in the above brackets. Defendant excepted, and assigns error, — that the question did not suggest the answer, or assume the facts as stated. There was an issue as to whether the bell was rung or the whistle blown, — no dispute about crossing the bridge. The court allowed the only part of the answer that was subject to the objection, and which should have been stricken out, to stand, and to be read to the jury.

Appellant insists that there was error in admitting, over defendant's objections, that part of witness Bartlett's answer to seventh direct interrogatory, because the witness answered matter that was not responsive to the question asked. The witness was testifying by deposition. The objection was made on the trial, and not by motion before announcement. The objection, as stated in the assignment, was to the form and manner of taking the deposition, and could not be made except by motion filed before announcement for trial.

There was an issue as to whether Kuehn died of the injuries received in the collision with the train, or of Bright's disease. Mrs. Nolte, formerly Mrs. Kuehn, was allowed to testify, over objection of defendant, that Kuehn complained of his wounds from the time of the collision up to the time of his death. Error is assigned to the ruling, because his complaints are hearsay, and that he was making evidence for himself. The rule is that complaints of existing suffering, and exclamations of present pain, are admissible as res gestæ. If the complaints were made after Kuehn had brought his suit for damages, or after the litigation was in view, they will not be admissible. 1 Whart. Ev. § 268, and authorities cited; 1 Greenl. Ev. §§ 100, 102.

There was no error in admitting testimony that there were trees near defendant's right of way, or other obstructions, preventing or interfering with the view of the train from the road where Kuehn was, whether the facts were alleged or not.

There was error in refusing to exclude the answer of the witness Boustedt, that "they [the persons operating the train] could have stopped, and not have hit the wagon, had they driven slower." The witness was not an expert. His answer was an invasion of the province of the jury.

It was not error to allow proof of how much cotton and corn Kuehn could raise in a year, and how much he could earn, in dollars and cents.

It was not error to allow a witness to state how long it would take a team to cross the railroad dump, on the crossing from the beginning of the approach. 1 Greenl. Ev. 61.

It was error to admit testimony that the approach was too narrow to allow a wagon to turn around on it with safety. The facts, only, could be stated to the jury. It was in proof that the ascent was steep, that the way was...