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

• Decision Date: 29 June 1904
• Citation: 81 S.W. 991
• Parties: INTERNATIONAL & G. N. R. CO. v. McVEY et al.
• Court: Texas Court of Appeals

81 S.W. 991

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

Court of Civil Appeals of Texas.

June 29, 1904.

Appeal from District Court, Hays County; L. W. Moore, Judge.

Action by Mrs. Margaret McVey and others against the International & Great Northern Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

S. R. Fisher, J. H. Tallichet, and N. A. Stedman, for appellant. A. B. Storey and Will G. Barber, for appellees.

FISHER, C. J.

This is a suit by Mrs. McVey, for herself and for the benefit of her minor children, to recover damages that they have sustained by reason of the death of Edward McVey, the husband of Mrs. McVey and the father of the minor children, which was caused by the negligence of the engineer and fireman and servants operating one of appellant's passenger trains, in permitting the same to come in collision with a push car on appellant's track, which was then under the charge and control of the deceased, Edward McVey, as a section foreman in the employ of the appellant, while he and the sectionmen were endeavoring to remove the push car from the track. Verdict and judgment were in favor of appellees for $20,000, and was apportioned $8,000 to Mrs. McVey, and $4,000 each to the minor children.

It is substantially alleged in appellees' petition and supplemental petition: That on the 10th day of December, 1902, the deceased, McVey, while in the employ of defendant as a section foreman, and when in the discharge of his duties as such foreman, had under his control a push car, upon which was loaded timber to be carried and used by him and the sectionmen in repairing appellant's track. That while said push car was on the track, and while he was in the performance of his duties, there approached from the north a passenger train going south on appellant's road, which was under the control and management of appellant's servants, who carelessly and negligently ran upon and against the push car, thereby causing the death of McVey, either by being struck by the engine or train, or by timbers or other objects then upon the push car, which by force of the collision were thrown from the same; and as stated in the supplemental petition, at the time of the collision, and immediately before, the said McVey, with some of the sectionmen, was endeavoring to remove the push car from the track in order to prevent a derailment and wreck of the passenger train, and with the purpose and intent upon the part of the said McVey, in removing the car, to save the lives of the passengers and appellant's employés aboard of said train. That the said McVey was rightfully upon the track with the push car, in the performance of his duties, when the collision occurred, and that it was the duty of the engineer and fireman, or the servants of appellant in charge of the train, to keep a lookout for sectionmen on or near the track, and push cars that might be under their control in use upon the track, but that the engineer and employés in control of the train carelessly and negligently failed to keep a proper lookout in order to discover the presence of McVey and the push car upon the track, and that by the exercise of reasonable diligence they could have discovered the situation of McVey and the push car in time to have stopped the train and prevented the collision, but they negligently failed to do so, or that they did discover and ascertain the situation of McVey and the push car in time to have stopped the train and avoided the collision, but they negligently, and with a reckless indifference to the life and safety of McVey, continued to run the train without an effort to stop the same until after the car was struck and McVey killed. That there was a public crossing within 300 yards of where the injury occurred. That it was the duty of the engineer to sound the whistle in approaching that crossing, which he failed to do. The defendant, in its answer, denied the negligence charged against it, and averred that the servants in charge of the train exercised due care, and that they gave the signal, by bell or whistle, in approaching the crossing, as required by law. And it further alleged that McVey was one of appellant's section foremen, and, as such, was required to go over defendant's track to work, and used thereon hand cars and push cars to carry men and material; that the morning of the accident was foggy and dark; that McVey knew this, and that trains were liable to pass at any time; that the place of the accident was not near any public crossing where signals were required to be given; that McVey rested under the duty of looking and listening for the approach of trains, which duty he negligently failed to perform; that, under the circumstances, he was required, in order to protect himself and the sectionmen, to have a flagman or flagmen out, so as to give warning of the approach of the train; that such duty was not performed; that this requirement with reference to flagmen was known to McVey; that McVey knew of the approach of the train in time to remove himself to a place of safety, but, with a knowledge of the peril involved, remained on or near the track until the collision occurred; that by reason of such conduct he was guilty of contributory negligence, and that he voluntarily assumed the risk that resulted from exposing himself to danger; that, by reason of the existence of a heavy fog on the morning of the accident, the servants of appellant in operating the train did not and could not discover the presence of McVey and the sectionmen and the push car on the track until the train had approached within such a short distance of the same that it could not be stopped so as to prevent the collision; that it was the duty of McVey, under the rules of the company, to be on the lookout for approaching trains, and to remove his push car from the track before the collision occurred, all of which, by reason of his negligence, he failed to do. The appellees, in their supplemental petition, in replying to that feature of the defense wherein McVey was charged with negligence or want of care in failing to put out flags, or causing flagmen to warn the approaching train of his presence, allege that it was not the duty of said McVey, under the circumstances existing and surrounding him at and prior to the collision, to undertake to protect himself and his co-employés by the use of any flag or other means, in that the passenger train was running behind its schedule time and date, and that it was not known to the said McVey that the said passenger train had not passed; that, under the rules of the company, which were known to McVey, and which he had the right to rely upon, it was the special duty of the engineer and those in charge of the train to keep a sharp lookout for sectionmen working with hand cars or push cars, in order to avoid a collision with them; that, if the engineer and employés in charge of the train had kept such lookout, they could easily have avoided the collision, and thereby have avoided the death of McVey.

On some of the important questions involved in the case there is a conflict of evidence, but there is evidence in the record, upon which the verdict may be predicated, that authorizes us to find the following facts:

The appellees sustained to McVey the relationship alleged in their petition. That McVey's death was caused at the time, place, and in the manner as alleged. That at the time of his death he was a section foreman in the employ of appellant, receiving $50 a month wages, and that he had a life expectancy of 19 or 20 years. That the appellees, his wife and minor children, were dependent upon him for support, and that he contributed and appropriated his earnings to their support and maintenance, and that they had the right to expect such pecuniary aid for the balance of his life, if he had continued to live. That he assisted to some extent in the performance of household and domestic duties, and in the care and rearing of his children, and that the minor children expected his care and counsel, which he would have given if he had continued to live. Therefore we reach the conclusion that the verdict and judgment are not excessive.

McVey, when killed, was a section foreman in the employ of appellant. The section house where he resided with his family was about two miles north of the point where the collision occurred that resulted in his death. The train that killed him was one of appellant's passenger trains going south, about two hours behind its schedule time. It was due to pass the section house about 5 o'clock in the morning. It passed the section house on the morning of the accident about 7 o'clock, and there is evidence in the record which authorizes the conclusion that McVey, on the morning of the accident, and at the time that he left the section house to start on his day's work, had no reason to believe that this train had not passed south on its usual and schedule time. There was due at the section house another passenger train, going south, about the time that McVey left the section house to start on his day's work, but this latter train was generally and usually behind time. McVey, with four sectionmen and with a hand car, started south from the section house about 15 minutes to 7 o'clock on the morning of the accident. When he reached a point about two miles south of the section house, going in the direction of Kyle, he caused to be placed on the track a push car, which he then had the sectionmen to load with cross-ties. These ties, with the push car, were to be taken to Kyle for the purpose of repairing appellant's track. Very near and immediately south of where the push car was placed upon the track and loaded with cross-ties, there was a bridge or trestle about 50 feet in length. After the push car had been loaded with the ties, and when the front wheels were upon the north end of this bridge or trestle, McVey stated to his sectionmen to hurry up and push the...