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

• Decision Date: 24 November 1899
• Citation: 54 S.W. 364
• Parties: INTERNATIONAL & G. N. R. CO. v. BRYANT.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

54 S.W. 364

INTERNATIONAL & G. N. R. CO. v. BRYANT.¹

Court of Civil Appeals of Texas.

November 24, 1899.

Appeal from district court, Montgomery county; L. B. Hightower, Judge.

Action by J. M. Bryant against the International & Great Northern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

N. A. Stedman and G. H. Gould, for appellant. S. A. McCall, for appellee.

GILL, J.

This was a suit for damages for personal injuries, and the appeal is from a judgment in favor of appellee, J. M. Bryant, against the appellant, the International & Great Northern Railroad Company, for $1,000. Appellee alleged as ground for recovery that he and others were riding in a two-horse wagon, driven by one of his companions; that when they came within 80 feet of the crossing of appellant they discovered that the crossing was blocked by appellant's cars, and stoped to await the opening of a passway; that a brakeman of appellant had the way opened, and called to the driver of the wagon to "come on, as the way was open"; that appellee and his companions, being unable to see up or down the track because of the cars standing on either side of the crossing, relied on the brakeman's invitation, and proceeded across; that just as they reached the main track they discovered that an engine and cars was being rapidly backed in the direction of the crossing, and they were in great danger of death or great injury; that, they being in such alarm, the driver urged his team to sudden and rapid speed, whereby appellee was thrown out, and run over by the wheel of the wagon, and greatly injured; that the acts of the company's agents in leaving the cars on each side the crossing, in inviting them across without telling them of the approach of the train, and in backing said train towards and across the crossing without warning, was negligence, of which the accident and injuries were the proximate result. The facts are, briefly, these: Appellee was in a neighbor's wagon at Willis, Tex., going towards the crossing of appellant. When the wagon was within about 80 feet of the crossing, it was discovered that it was obstructed by the freight cars of appellant, and the wagon was stopped until the way was opened. There were two side tracks between the wagon and appellant's main track at that point. One of appellant's brakemen, seeing that parties desired to cross at that point, had the cars removed from the crossing, and called to the driver of the wagon in which appellee was to "come ahead, way is open," and, relying upon the invitation, they proceeded to cross. The cars standing on the side tracks rendered it impossible for the occupants of the wagon to see any distance to the right or left on appellant's tracks until they were in the act of crossing the main track, when it was discovered that an engine and cars of appellant were backing in the direction of the crossing at the rate of about seven miles an hour, without signal or warning of any kind, and it was necessary to urge the team at a rapid rate to avoid a disastrous collision. This was done by the driver of the wagon, who, together with the other occupants, was greatly alarmed, and the sudden increase in the speed of the wagon caused the appellee to fall out of the wagon; his injuries being due to the fall and the fact that the hind wheel of the wagon passed over his body. At the time the wagon was crossing the tracks of appellant, and up to the time of his fall,...