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

• Decision Date: 02 March 1910
• Parties: INTERNATIONAL & G. N. R. CO. v. BRICE.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

126 S.W. 613

INTERNATIONAL & G. N. R. CO. v. BRICE.^†

Court of Civil Appeals of Texas.

March 2, 1910.

On Motion for Rehearing, March 30, 1910.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by Frank Brice against the International & Great Northern Railroad Company. From a judgment for plaintiff, defendant appeals. Conditionally modified and affirmed.

King & Morris and Hicks & Hicks, for appellant. John Sehorn, for appellee.

FLY, J.

This is a suit for damages alleged to have arisen from injuries inflicted on appellee, through the negligence of appellant, while he was engaged in the performance of his duties as locomotive engineer. A trial by jury resulted in a verdict and judgment in favor of appellee for $22,500. This is the third appeal of this case; reports of the results of the former appeals being found in 95 S. W. 660, 100 Tex. 203, 97 S. W. 461, and 111 S. W. 1094.

The evidence shows that on the morning of March 16, 1903, two trains of appellant were running in the same direction, the one a short distance behind the other; that the one in front designated as No. 7 had stopped at Kyle, and while standing on the main track was run into by the second train known as No. 5, of which appellee was the engineer, and in the collision appellee was seriously and permanently injured. In deference to the verdict of the jury, which has evidence tending to uphold it, we conclude that the collision occurred through the negligence of the employés in charge of train No. 7 in not putting out signals to inform the operatives of train No. 5 of the fact that train No. 7 was standing on the track.

The first, second, and third assignments of error assail the action of the court in permitting appellee to testify as to the duty of the employés on train No. 7 in reference to putting out flags and torpedoes to warn approaching trains of its position on the track; the ground of objection being that the printed rules in regard to the duties of trainmen were plain and unambiguous, and oral testimony as to those duties was an invasion of the province of the jury. No claim is made that the evidence was injurious in its tendency, as could not reasonably be done, because the evidence of the witness was in perfect harmony with rule 8, which required torpedoes and red signals to be carried on all engines, baggage cars, and cabooses, and that the employés use them whenever a train, for any cause, has to stop on the main track in such a position as to endanger it from approaching trains. The rule specifically sets forth the manner in which the signals and warnings should be given. Train No. 7 should have left its position on the main track at 7:01 o'clock a. m. under the emergency schedule upon which it was running, and the question arose as to the application of the rule if it remained long enough over that leaving time to trespass on the time of the train that was closely following it, and whether it then became the duty of the employés to display the signals required by the rule. Under the operation of rule 16, which requires that "passenger trains in sections, or running near each other in the same direction, must keep ten minutes apart," the moment 7:01 o'clock arrived train No. 7 was encroaching on the time of the train following it, and it became the duty of the stationary train to display the signals required under the operation of rule No. 8. This proposition we think is sustained by the only fair construction that can be placed on the last-named rule. Such being the case, appellant could not have been injured by appellee swearing to the same fact, and the assignments, if otherwise tenable, present nothing but mere abstractions.

Appellee and the witnesses A. D. Evans and J. D. Seamands were expert railroad men, and the court did not err in permitting them to testify that train 5 was authorized to enter Kyle at any time after 7:01, when train 7 should have left. Evans was the conductor, and appellee the engineer, of train No. 5, and Seamands was conductor of train No. 7. To them was intrusted the running of the two trains, and they must have known the time at which train No. 5 had the right to enter Kyle, and because the authority to do so at any time before 7:11 may have conflicted with the rule requiring running trains to keep 10 minutes apart would not render the testimony inadmissible. The witnesses were authorized to give the construction placed by railroad experts on the meaning of the 10-minute rule, and to explain that it was utterly impossible for the operatives of a following train to tell between stations how far ahead the train in front might be, and to explain that the rule has nothing to do with the arrival at a station, but applies only to the departure. The testimony of appellee as to the construction to be placed on the rule was not brought out by him until after he had been rigidly cross-examined as to what he considered his duty in connection with the 10-minute rule. If he had the authority from his master to run into Kyle at any time after 7:01 o'clock, or if he so construed his authority, he had the right to swear to it. The only objection to the testimony was that it varied the terms of the 10-minute rule. The objection was untenable. A rule would not seem to be as plain and unambiguous as appellant claims it is, when certain constructions are placed on it by expert railroad men, for whose governance it was promulgated, which are different from what appellant contends is the plain import of the rule. The full evidence objected to was brought out by appellant on the redirect examination of A. D. Evans, its witness, and it is in no position to object to it. Appellee had the right to prove that there had been an habitual disregard of the 10-minute rule, and that such disregard was known to the company. An admission made by appellee on previous trials as to the railroad company expecting him to obey the rule would not affect the competency of the testimony, and that seems to have been the only basis of the...