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

• Decision Date: 09 June 1898
• Citation: 46 S.W. 922
• Parties: INTERNATIONAL & G. N. R. CO. v. CULPEPPER et al.
• Court: Texas Court of Appeals

46 S.W. 922

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

Court of Civil Appeals of Texas.

June 9, 1898.

Appeal from district court, Smith county; J. G. Russell, Judge.

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

Duncan & Jones, for appellant. Marsh & McIlwaine, J. W. Fitzgerald, and W. J. Goodman, for appellees.

WILLIAMS, J.

This cause was before the court of civil appeals of the Fourth district (38 S. W. 818), and before the supreme court (90 Tex. 627, 40 S. W. 386), upon appeal from a former judgment in favor of Mrs. Culpepper. The suit was prosecuted by appellee, the widow of J. J. Culpepper, in behalf of herself and of Maud and Chris Culpepper, minor children of J. J. Culpepper by a former wife, to recover damages for the killing of the husband and father, alleged to have been done by negligence of appellant. The last trial resulted in verdict and judgment for plaintiff for $10,800, apportioned as follows: To Mrs. Culpepper $3,400; to Chris Culpepper, $3,400; to Maud Culpepper, $4,000.

Culpepper, before his marriage with appellee, had been divorced from his first wife, the mother of Chris and Maud, by a decree which gave to him the custody of Chris, but made no provision as to Maud. At the time of the father's death Chris was 12 years, and Maud 10 years, of age. Maud remained with her mother, who is still living. The evidence showed that Culpepper devoted his earnings to his wife and son, and there was no proof that he contributed to the support of his daughter.

Culpepper was a locomotive engineer in the service of appellant, and, when killed, was operating the engine of the front section of a freight train. The rear section was following behind, in charge of other servants. One of the boxes of his engine becoming so hot that there was danger of the journal being burned off and a wreck resulting, Culpepper stopped the train on the main track, between two stations, to remedy the trouble. In doing so he sounded the whistle as a signal for the train to stop, and, after it had stopped, he backed the train a short distance, in order to place his engine over a cattle guard, which was done for the reason that, in "packing" the box, it was necessary for him to go under the engine, for which the cattle guard afforded more room. Having done this, he gave another signal, which signified to the brakeman that they were to hold the slack out of the train. He then went under the engine to work upon the box, and, while he was so engaged, the second section collided with the rear end of his train, and pushed the engine over his body, causing his death. It is conceded that those operating the rear section were not at fault, as the first train was so situated that they could not see it in time to stop their train, and they did all that was in their power after discovering it to prevent the collision. The plaintiffs' contention is that the collision is attributable to the negligence of the conductor of Culpepper's train, in failing to send back a brakeman with flag and torpedoes to give notice to the engineer of the other train; and the defendant's contention is that the catastrophe was caused, or at least contributed to, by Culpepper's own negligence, in stopping his train at such place, and in failing to give a signal for sending out the flagman, and in going under the engine without having assured himself that the proper precautions to prevent a collision had been taken. The rules of the company provide that all trains are run under the direction of the conductors, except when their directions conflict with the rules, or involve risk, in which case the engineer is held equally responsible. Conductors are held responsible for the performance of their duties by brakemen. No train is allowed to be stopped on the main track (except regular stops) without a flagman being sent back at once, with torpedoes and a flag. This duty is to be performed by brakemen, who are required to get off of freight trains, for the purpose, before the trains have stopped. Conductors are required to see that brakemen do not deviate from this rule. The manner in which the torpedoes and the flag are to be used, and the distance they are to be placed behind the train, are prescribed in detail. It is further provided that when a train "from any cause has to stop on main track, in such a position as to endanger it from approaching trains, it must be protected" in the manner prescribed; and, by another rule, that "all trains must be run under the supposition that an irregular train is liable at any moment to overtake them on any part of the road." Freight trains, traveling in the same direction, are permitted to pass stations five minutes apart. Their schedule rate of speed is 18 miles an hour.

There is no rule which, in express terms, requires the engineer to give any signal for sending out a flagman, in case of a stop upon the main line, but, under the head of "Whistle Signals," it is provided: "Five short blasts of the whistle is a signal to the flagman to go back and protect the rear of his train." Under "Rules Governing the Use of Signals" it is provided: "All signals must be used strictly in accordance with these rules, and trainmen should keep a constant lookout for signals." It is further required that engineers, when they stop at any place where a flagman is likely to be sent out, must call in such flagman before starting, by the usual whistle signal. Only the engineer is authorized to give signals by whistle.

The testimony renders it evident that, at some times, the occasion for stopping will be known only to the conductor, and at others that it will be known only to the engineer. When the latter is the case, the evidence is practically uncontradicted that the engineer should give the signal for sending out the flagman, in order to inform the conductor that a stop requiring such a precaution is to be made. That it is made his duty to do so by the rules is the practical interpretation which has been given to them by the employés of this and other roads. It is also shown, however, that, without such signal, it is the duty of the conductor, when the train has stopped, to send out the flagman to protect the train. The evidence on the subject, showing the practical application which has been given to the rules, is in accord with them, and we conclude that it was the duty of Culpepper, when he determined to stop the train, to give the signal for the flagman to be sent back; but, also, that it was the duty of the conductor, without the signal, to take that precaution. It is conceded that the signal was not given by the engineer.

The weight of the evidence shows, however that not only were the two signals before mentioned given, showing that the train was to be stopped, but that it had been standing at least 15 minutes, and probably longer, when the collision occurred. The testimony of the conductor of Culpepper's train is that he did not know the occasion of the stop, and that if the signal for flagman had been given he would have caused the brakeman to drop off before the train stopped. His evidence further shows, however, that he realized that the stop was such as to make it proper to send back the flagman, since he states that, as soon as the train stopped, he started back a flag, and went himself. His explanation of the collision is that the time, which he fixes at three minutes, elapsing between the stopping of his train and the collision, was not sufficient to enable him to give the necessary notice to those on the second train. As to the time which elapsed and the fact of his attempting to send or carry back the warning, he is contradicted by the weight of the evidence. The jury could properly have found that, though the signal was not given, yet the conductor knew that the stop was of such a character as to make it his duty to give the required notice to those on the other train; that he had ample time, after realizing this, to have given such notice; and that he negligently failed to do so. In this view of the case, he possessed all the information which a signal from the engineer would have given him.

The train was stopped by Culpepper near a cut and a curve, which hid it from the sight of the engineer on the second train until the latter was so close that it could not be stopped before colliding with the other train. The track for a mile or more in front of Culpepper's train was straight, so that, for that distance further on, his train could have been seen by those approaching from behind, had he gone on. It is contended that in stopping in this place he was guilty of negligence. According to the evidence, the necessity for stopping when he did...