International & G. N. R. Co. v. De Bajligethy

• Decision Date: 20 September 1894
• Citation: 28 S.W. 829
• Parties: INTERNATIONAL & G. N. R. CO. v. DE BAJLIGETHY et al.
• Court: Texas Court of Appeals

28 S.W. 829

INTERNATIONAL & G. N. R. CO. v. DE BAJLIGETHY et al.

Court of Civil Appeals of Texas.

September 20, 1894.

Appeal from district court, Harris county; S. H. Brashear, Judge.

Action by Charlotte H. De Bajligethy and others against the International & Great Northern Railroad Company to recover damages for the wrongful death of Maximus De Bajligethy. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

John M. Duncan and Robt. G. Street, for appellant. Ewing & Ring, for appellees.

WILLIAMS, J.

Maximus De Bajligethy was struck and killed by a moving car upon defendant's track, in the city of Houston, on the 7th day of February, 1893. This action was brought by appellees, his widow and children, to recover damages sustained by them from his death, upon the allegation that such death was caused by the negligence of appellant. The case was tried by the court, without a jury, and judgment was rendered in favor of the plaintiffs for $4,000, one-third of which was adjudged to the widow, and the remainder was divided equally between the sons and daughters, of whom there were nine. One of the daughters was married, and three of the sons were adults, and none of these were shown to have been dependent upon their father for support; nor is there any evidence that they had any expectation of receiving from him, had he lived, any pecuniary benefit. A brother of Mrs. Smith, the married daughter, testified that he did not know where her husband was, and had not heard of him for three, four, or five years, and this was all of the evidence tending to show her dependency on her father. The circumstances attending the death of De Bajligethy were, briefly, as follows: Early in the morning he left his home, which was east of defendant's depot, intending to go to market in the city. He stopped at the depot, and remained in the waiting room, awaiting the arrival of a street car to carry him to the market, which was about a mile and a half west of the station. One of the defendant's tracks ran just west and parallel with the station house, in which the deceased was, and between the two was a sidewalk, 18 feet wide. West of and parallel with this track was the track of the street railway, and the strips of land on each side of the defendant's railway were habitually used by the public as sidewalk; and the public habitually, at all times, with the knowledge and acquiescence of defendant, passed back and forth across the track where deceased was struck. At the time of the morning when deceased was killed, it could have been reasonably foreseen that persons would be crossing the track at that place. The defendant, in making up one of its passenger trains, pushed the car which struck deceased along the track in question, at a rate of speed exceeding six miles an hour, to which rate the movement of trains within the city was limited by ordinance. The car was not attached to or controlled by an engine, and no bell was ringing or whistle blowing to give warning of its approach. It had been put in motion by being "kicked" backward by the engine, and, being then detached from the engine, it was left to move to its place on the track. A brakeman, however, rode upon the forward platform, and a lighted lantern was either held in his hand or was placed upon the floor by his side. "The deceased, in attempting to cross the track on the occasion in question, came out of the station house (from which the car could not be seen) at a short distance from the track, moving rapidly. It was dark. The wind was blowing briskly from the north, and in the direction from him towards the car. The approaching car made little noise, and the electric cars were frequently passing on the street a few feet off. The deceased received no warning except an halloo from the brakeman, which was about simultaneous with his being struck, and too late for him to avoid the injury. It does not appear that he did not look for the car." It had for some time before the accident been the custom of defendant to make up its trains, as was done in this instance, by kicking the cars into place. It does not appear sufficiently that deceased knew of this practice, or knew that this train was being made up in this way.

1. From these circumstances, our conclusions are that the moving of the car, detached from the engine, without the...