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

• Decision Date: 29 November 1905
• Citation: 90 S.W. 918
• Parties: INTERNATIONAL & G. N. R. CO. v. JACKSON et al.
• Court: Texas Court of Appeals

90 S.W. 918

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

Court of Civil Appeals of Texas.

November 29, 1905.

Appeal from District Court, McLennan County; Marshall Surratt, Judge.

Action by Claracy Jackson and others against the International & Great Northern Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed.

Baker & Thomas, for appellant. S. P. Ross and Abe Gross, for appellees.

FISHER, C. J.

This is a suit by appellees to recover damages for the alleged negligent killing of Louis Jackson, the husband of the appellee Claracy Jackson. Verdict and judgment were in appellees' favor for the sum of $875.50.

Substantially it is alleged in plaintiffs' petition that the deceased, Jackson, was killed and run over by one of appellant's trains in backing into the depot in the city of Waco; that the deceased was rightfully at the depot and was crossing the track at the time he was killed; that the appellant's train noiselessly backed into the depot at a dangerous and high rate of speed, to wit, at 16 miles an hour, in violation of an ordinance of the city as to the rate of speed; that the train was negligently backed in, instead of headed in; that those operating the train did not have the same under control; that no one announced the arrival and departure of trains; that there was no sufficient whistle on the back end of the passenger train that was backing in; that the bell was not rung nor the whistle blown; that it did not have a guard or pilot or cowcatcher on the end that was backing in; that it gave no signals and had no one in charge on the back end; that there was no sufficient lookout for the deceased; and that the deceased's dangerous situation upon the track was discovered in time to prevent running over him, and that there was no diligence exercised to stop the train. The appellant pleaded that the deceased was guilty of contributory negligence in being upon the track, and that he knew, or by the exercise of ordinary care might have known, that defendant's train at the time and place of the accident was in motion, and that it was being backed into the defendant's depot; that he walked along and immediately in front and in plain view of the backing cars; that by looking and listening he could have seen and heard the approach of the defendant's cars and could have avoided the accident; that the train was being backed in slowly at the time of the accident; that the deceased was warned by persons present, immediately before and at the time of the accident, of his dangerous position; that the bell was being rung and the whistle was blown; that he negligently walked in front of the back end of the moving train, and, when he was discovered, it was impossible to stop the train before striking him. The answer further avers "that deceased, before and at the time of the accident, was under the influence of intoxicating liquors, of which fact this defendant did not know and had no means of knowing, and here says that but for the contributory negligence of said Louis Jackson, as hereinbefore alleged, said accident would not have happened."

Appellant's first assignment of error complains of the verdict upon the ground that the appellant was not guilty of negligence, and that it used all means within its power, after the discovery of the dangerous situation of Jackson, to stop the train, and that the deceased Jackson was guilty of contributory negligence, as alleged in its answer. We are not prepared to say that this assignment is well taken. It is a close case on the facts with reference to the issue of contributory negligence; but there is some evidence in the record that would possibly justify the conclusion that the deceased was not guilty of contributory negligence. But, independent of this, and conceding that he did not exercise proper care at the time he went upon the track, the issue of discovered peril under the facts is in the case, and it was a question for the consideration of the jury as to whether or not, from the time that his position upon the track and his perilous situation was actually discovered, the train could and should have been stopped. As to the question of the negligence of the railway company, in some of the respects alleged in plaintiffs' petition, there is evidence.

In view of the general charge of the court, there was no error in refusing the special instruction set out under the third assignment of error. The charge did place the burden upon the plaintiffs to establish their averments of negligence by a preponderance of the evidence.

The fourth assignment of error complains of that part of the fourth paragraph of the charge of the court which required the defendant's servants in charge of the train to exercise ordinary care in all respects in moving the train into the depot to prevent injury to persons at the depot, etc. The objection is to the words "all respects." Of course, the trial court evidently only intended that the company would be liable only for actionable negligence in failing to perform its duty in those respects alleged and established by the evidence; and, upon another trial, this objection will doubtless be obviated.

We find no reversible error as stated under the fifth assignment.

Another objection is urged to the fourth paragraph of the court's charge by the sixth assignment of error. It is there contended that this subdivision of the charge is upon the weight of evidence. The court in this charge substantially instructed the jury that the burden rested upon the railway company to exercise ordinary care in moving its train into the depot to prevent injury to persons about the depot; and, if they failed to exercise such care in either of the respects as charged, and Louis Jackson was injured as a result of such failure, such failure would be an act of negligence upon the part of the defendant. The contention is that the concluding expression, to the effect that such failure would constitute negligence, is an invasion of the province of the jury; that it was a question of fact for them to determine as to whether the failure to exercise ordinary care under the...