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

• Decision Date: 04 May 1907
• Parties: INTERNATIONAL & G. N. R. CO. v. MUNN et al.
• Court: Texas Court of Appeals

102 S.W. 442

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

Court of Civil Appeals of Texas.

May 4, 1907.

Rehearing Denied May 23, 1907.

Appeal from District Court, Smith County; R. W. Simpson, Judge.

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

N. A. Stedman, John M. King, N. B. Morris, and Marsh & McIlwaine, for appellant. McCord & Bullock, for appellees.

GILL, C. J.

Martha Munn for herself and as next friend of her infant daughter brought this suit against the International & Great Northern Railroad Company to recover damages for the death of her husband, Madison Munn, whose death was alleged to have been due to the negligence of defendant. Fannie Munn, the mother of deceased, also became a party plaintiff. The plaintiffs, though they alleged due care on the part of deceased, finally relied for recovery upon the theory of discovered peril. The defendant answered by general denial and pleaded contributory negligence. A trial by jury resulted in a verdict and judgment for $5,000, apportioned $3,000 to the wife and $1,000 each to the daughter and mother of deceased.

The accident which resulted in the death of Madison Munn occurred on March 4, 1905. On that date he was walking in a northerly direction on defendant's main line, a few miles north of Troupe, Tex., and was struck by one of defendant's south-bound passenger trains which was a little behind time, and was moving at the rate of about 40 miles per hour. The track was practically straight at that point, and the engine was visible to Munn, and Munn was visible to the engineer, for at least 2,000 feet. Deceased was a deaf mute, and neither saw nor heard the engine until the moment before it struck him. In failing to see the engine in time to save himself he was negligent. The engineer did not know he was a deaf mute, but actually saw him walking in the center of the track about the distance named, and continued to see him walking on the track, and apparently neither seeing nor hearing the engine until he was struck and killed. When 600 or 700 feet away, the engineer began to ring the bell to attract his attention. This failing, he immediately began to sound the stock alarm. Munn nevertheless continued his course, and gave no evidence that he was aware of the approach of the train, whereupon the engineer applied the air in the emergency, but at a point so near deceased that there was no hope of saving him by that or any other means at hand. Up to the point where the air was applied in the emergency there was no attempt to slacken the speed of the train. The testimony is sufficient to establish the fact that the deceased had his hat pulled over his eyes, and was looking down at the ties as he walked from the time he was first seen by the engineer until about the moment of the accident. The engineer discovered that his attention had not been attracted by the bell or whistle in time to have averted the accident by the use of the means at hand and without endangering the train. The engineer knew of Munn's ignorance of the approach of the train, and that that ignorance was perilous; that, if he failed to attract the attention of Munn before the engine reached him, death was inevitable. As against the safe method of getting his train under control after learning of Munn's ignorance, and realizing that the bell and whistle had failed to attract his attention, he chose to continue to try to attract his attention by the bell and whistle, and to hope that Munn might yet be induced to save himself, until it was too late to check or stop the train. In this we are of opinion the engineer failed to use every means at hand consistent with the safety of the train after realizing the peril of deceased, and that, had he so done, the accident would not have happened.

These fact conclusions have been reached against the earnest protest of counsel for appellant under an assignment questioning the sufficiency of the evidence. They are predicated upon the engineer's testimony that he saw the deceased for the distance named that he continued to see him; the fact that he thought it necessary for Munn's safety to ring the bell and sound the stock whistle; his actual knowledge that neither of these attracted Munn's attention; certain declarations of his that Munn had acted peculiar from the first; testimony of passengers as to when the whistle was sounded and at what point the brake was set; and the undisputed testimony that the train ran farther after it struck Munn than it would ordinarily run after the application of the emergency brakes. The proposition advanced by appellant is that an engineer in charge of a moving engine has the right to assume, in the absence of knowledge to the contrary, that one walking on the track ahead of him is in possession of normal faculties, and will by their timely use discover the train and leave the point of danger, and counsel contend that under the evidence the engineer was shown not to have discovered the peril of deceased in time to have averted the accident. We will briefly discuss the evidence in the light of established rules of law.

It is well settled that a recovery cannot be had on the theory of discovered peril, unless it be shown that the one in charge of the dangerous agency realizes the peril of the one threatened by its approach in time to avert an injury by the prompt use of the means at hand. Railway Co. v. Breadow, 90 Tex. 26, 36 S. W. 410; Railway v. Staggs, 90 Tex. 256, 38 S. W. 167; Railway v. Shetter, 94 Tex. 196, 59 S. W. 533; Railway v. O'Donnell, 92 S. W. 409, 15 Tex. Ct. Rep. 505. The soundness of the proposition advanced by appellant as to what the engineer may lawfully assume as to a person walking on the track is equally well established. O'Donnell and Shetter's Cases, supra.

The questions arising upon the facts of this case are therefore: First. What constituted the peril of deceased? Second. Was the known conduct of deceased of such a character as to advise the engineer of his peril in time to have saved him? Third. Did the engineer by reason of the facts within his knowledge realize the peril of deceased in time to save him? We say these are the points in issue because the evidence upon all other questions affecting the issue of liability is undisputed. The engineer admits having seen the deceased for the distance named, and from that time his attention never left him. The engineer does not pretend that the man raised his eyes or gave any other indication of knowledge of the approach of the train. That from these things the engineer suspected his ignorance is made plain by the ringing of the bell and the sounding of the stock whistle for the express purpose of arousing him to a consciousness of his danger. To none of these did deceased respond by the slightest motion indicating that he had heard or seen. The engineer was confessedly in possession of all these facts, and was keenly conscious of them. He was therefore conscious that deceased was acting in a most peculiar manner, and this is true because it is against reason that one walking along a railway track, and hearing a train whistling for a crossing, hearing the ringing bell, and instantly thereafter the alarm whistle sounded violently and persistently, would not raise his eyes, even if for no other reason than to see if stock was on the track ahead of him. A most natural curiosity would have prompted this had he heard. It was therefore plain that he had not heard, and it is equally clear that this the engineer knew. But even at the point where the engineer's power to save deceased had ended, there was, of course, still a chance to arouse him to a consciousness of his peril in time for him to save himself, and this the engineer continued to try to do. The engineer testified that he believed deceased would leave the track before the engine reached him, and never knew otherwise until too late to save him. From this it is argued that the facts do not establish knowledge on the part of the engineer that deceased would not leave the track, and that, under these facts, the engineer had the right to continue to presume that Munn would leave the track. Counsel insist that the peril of deceased consisted in the fact that he would not leave the track in time, that this the engineer did not actually know, and that it was not enough if he believed it or suspected it.

There are loose expressions in cases from courts of the highest authority which tend to support the contention that, in order to justify a recovery in such a case, the engineer must actually know that deceased will not leave the track. This is notably true in Railway v. Shetter, 94 Tex. 199, 59 S. W. 533, in which occurs the expression: "* * * A person walking negligently along a railway track in front of a moving train will surely be hurt unless the train stops or he gets out of the way. In a sense he may be said to be in danger, but those controlling the train are not required to assume that by his negligent failure to act he will remain in danger. It is only when they realize that he cannot or will not get out of the way that the duty of averting the collision arises. * * *" One might infer from this that one who, in fact, saves himself at the last moment was never in fact in peril, and that until the engineer knows that one cannot or will not leave the track in front of his moving engine he has not realized that person's peril; but neither in the decision in which that language was used nor in the latter case (Railway Co. v. O'Donnell, 92 S. W. 409, 15 Tex. Ct. Rep. 505), in which Justice Brown quotes it, is it used in the sense in which appellant construes it. This is made clear by the language of Judge Brown immediately preceding the quotation in O'Donnell's Case, supra, as follows: "If O'Donnell was negligent, then to render the company liable, the evidence must show that...