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

• Decision Date: 10 May 1905
• Parties: INTERNATIONAL & G. N. R. CO. v. GLOVER et al.
• Court: Texas Court of Appeals

88 S.W. 515

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

Court of Civil Appeals of Texas.

May 10, 1905.

On Rehearing, June 14, 1905.

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

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

S. R. Fisher and N. A. Stedman, for appellant. Jas. L. Storey and A. B. Storey, for appellees.

EIDSON, J.

This is a suit by Mary Glover, the widow, and Robert, A. J., Elvie, Hallie, Lelia, Charles, and Ada Glover, the minor children, of Charles Glover, deceased, against the International & Great Northern Railroad Company, to recover damages which it is alleged were sustained by them because of the death of the said Charles Glover, occasioned, as alleged, by the negligence of the agents and servants of appellant, in charge of an engine running over the railroad without a train attached, carelessly and negligently permitting same to come in collision at a public road crossing with a buggy in which were said Charles Glover, his son Robert, and his grandson, Walter Farmer. It was alleged that, while the said Glover was driving to and over the crossing, the agents and servants of the defendant in charge of the engine negligently and recklessly approached the crossing at great speed, and negligently, carelessly, and recklessly failed to ring the bell or blow the whistle on the engine; that appellant had negligently permitted a rank growth of weeds, brush, and grass to grow on the embankment on the east side of its road, so as to obstruct the view of people approaching said crossing from the east side of said track, and that it did so obstruct the view of the deceased; and that all of said acts of negligence were the direct and proximate cause of the death of the said Charles Glover, and that all of said acts contributed thereto. John Glover, Sarah Coffee, joined by her husband, Bona Coffee, Tina Phillips, joined by her husband, Geo. Phillips, and Ida Johnson, joined by her husband, Ollie Johnson, the said John, Sarah, Tina, and Ida being the adult children of the said Charles Glover, deceased, intervened, making themselves parties, and disclaimed any right to recover. Appellant answered by a general demurrer and special exceptions, a general denial, and a special plea of contributory negligence on the part of the said Charles Glover, proximately contributing to his death. There was a trial before the court and jury, resulting in a verdict and judgment in favor of appellant against the adult plaintiffs, and in favor of the widow and the minor children, the appellees herein, for $6,663.00, apportioned thus: $3,331.50 to Mary Glover, the widow, and $3,331.50 to the seven minor children in equal shares. Appellant's first, second, and third assignments of error complain of the action of the court below in overruling its general demurrer and first and second special exceptions to appellees' petition.

Appellant's proposition under its first assignment of error is to the effect that appellees' petition enumerates several alleged acts of negligence on the part of appellant, its agents and servants, but, except as to the charges that the engine as it approached the crossing was being run at a reckless and dangerous rate of speed, and that the whistle was not sounded and the bell rung, as required by law, there are no averments that the alleged acts of negligence had aught to do with producing or causing the injuries resulting in the death of plaintiffs' decedent, and therefore, as to such acts, the petition failed to state a cause of action.

Appellees in their petition, after enumerating a number of alleged acts of negligence upon the part of appellant, including the allegations that it had negligently permitted a rank and high growth of weeds to grow upon its right of way and upon the high embankment upon the east side of its track, so as to completely hide from view any train or engine upon said line of railroad and approaching said crossing from the north, made this allegation: "And plaintiffs say that said acts of negligence were the direct and proximate cause of the death of said Charles Glover, and that all of said acts contributed thereto," which allegation referred and applied to each and all of the alleged acts of negligence. Appellant's proposition under its second assignment of error insists that the railroad company rests under no duty to a traveler on a public road intersecting or crossing a railroad to so construct and maintain its roadbed, tracks, and adjacent right of way that travelers going along the public road, while approaching the crossing, shall be able to see a train or engine a long distance from the crossing, a railroad company having the legal right to construct and maintain its road and run engines and trains thereover upon an embankment, or around a curve, or in a cut, and negligence cannot be predicated upon the mere fact that it may have constructed its railroad through a cut. While it is true a railroad company has the right to construct and maintain its railroad around a curve or in a cut, it is also true that if it permits weeds, brush, and grass to grow upon its right of way immediately adjoining its track to such a height and density as to obstruct the view of parties approaching a public crossing, and prevent them from seeing an engine or cars approaching such crossing, such permission might constitute negligence, and render it liable to injuries caused to such parties as a result of such negligence. The court did not submit to the jury the matter to which appellant's second special exception relates, hence there was no error in the action of the court in overruling said exception.

There was no error in the action of the court in refusing to give to the jury appellant's peremptory instruction to find in its favor. There was sufficient testimony to authorize the submission of the case to the jury, and to support their findings that appellant was guilty of negligence, as charged in appellees' petition, and that the death of Charles Glover, the husband of appellee Mary Glover and father of the other appellees, was the proximate result of such negligence, and that the said decedent was not guilty of contributory negligence. It was not necessary that the proof be confined to the exact date alleged in the petition. If it showed the identity of the transaction alleged and proven, and the date proven was not so long prior to the institution of the suit as to show that the action was barred by limitation, it was sufficient. Hence we overrule appellant's fourth assignment of error.

Appellant's fifth assignment of error complains of the following paragraph of the charge of the court: "The law requires all companies operating their railroad trains to provide such locomotive engines with a bell and steam whistle, and that such whistle should be blown and such bell rung at a distance of at least 80 rods from the place where a public road shall cross a railroad track, and also that such bell shall be kept ringing until the engine shall have crossed such public road or stopped; and in this case, if you find from the evidence that those in charge of the engine of defendant failed to so blow the whistle and so ring the bell, as stated above should be done, and that such failure was negligence, and that, by reason of such failure to comply with the law, deceased was run over and killed, defendant would be liable for such damages as are caused proximately thereby, provided that you find that the deceased used due diligence and care, as defined herein, to prevent said injury, as the law of contributory negligence is herein defined." Appellant's ground of complaint against this charge is that the court had not previously in said charge advised, nor did it in any subsequent part of its charge advise, the jury as to what would constitute due diligence and care on the part of the deceased. In this appellant is not sustained by the record. The court gave in its general charge a proper definition of negligence, and stated that the same applied both to the plaintiff and the defendant; and in special instruction No. 4, given at the request of the defendant, the court instructed the jury that if the deceased Glover, prior to the time that he received the injuries alleged in plaintiffs' petition to have caused his death on defendant's track, in approaching and going upon the same, failed to exercise such care as an ordinarily prudent person would have...