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

• Decision Date: 04 March 1909
• Citation: 117 S.W. 936
• Parties: INTERNATIONAL & G. N. R. CO. v. TINON et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

117 S.W. 936

INTERNATIONAL & G. N. R. CO. v. TINON et al.^†

Court of Civil Appeals of Texas.

March 4, 1909.

Rehearing Denied April 1, 1909.

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

Death action by Abe and Mary Tinon against the International & Great Northern Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Eva Tinon, a negro girl about 16½ years old, on November 28, 1904, was struck by one of appellant's passenger trains and killed at a point where a public road crossed appellant's track. In an action for damages alleged to have been suffered by them by reason of her death, appellees (her father and mother) recovered a judgment against appellant for the sum of $500. The appeal is from that judgment.

The negligence alleged in the petition was the failure of appellant's employés in charge of its train, as same approached the crossing, to blow the whistle and ring the bell of the locomotive, their failure to keep a lookout for persons traveling upon the public road and about to cross said track, and their failure, after discovering the perilous position of the deceased, to use the means they should have used to avoid injuring her. The defense relied upon was contributory negligence on the part of deceased, in that as she approached the crossing she failed to look and listen for the train, but, instead, carelessly ran upon the track at a time when she knew the train was rapidly approaching and almost upon the crossing.

From the evidence it appeared: That appellant's line of railroad at the point where it crossed a public road ran north and south; that a public road running from west to east, at a point about identical with the west line of the right of way of the railroad, divided into two prongs, one of which extended east across the track of the railroad, and the other of which extended north along and parallel with the west boundary line of said right of way; that from the point where the public road crossed the railroad to a point south about 250 to 300 yards, where it curved to the west, the track of the railroad was straight and slightly upgrade; that for some distance west the public road as it approached the crossing over the railroad was also straight; and that between said public road as it so approached said crossing from the west and the right of way for the railroad south of the crossing was a field inclosed in part by a fence along the south line of the road and west line of the right of way. It further appeared from the evidence: That at about 9 o'clock on the morning of November 28, 1904, deceased and her sister Rose, then about 30 years of age, started to go afoot from a point on the public road west of the crossing to a point east of the crossing; that at the time the wind was blowing strongly from the south; that deceased was wearing a sunbonnet, which extended down and out, covering the sides of her head and face, and which was tied on to her head because of the wind; that her sister was wearing an ordinary hat pinned on to her head; that as they approached the crossing deceased and her sister, who had been jumping and skipping along the road, raced towards the crossing, the former being a short distance ahead of her sister; that at the same time appellant's north-bound passenger train was approaching the crossing at a speed of between 40 and 50 miles an hour, and making very little noise; and that deceased, as she reached the crossing, and while running across the same, was struck by the locomotive pulling the train and thereby instantly killed.

S. R. Fisher, J. H. Tallichett, S. W. Fisher, and Jno. M. King, for appellant. Will G. Barber, for appellees.

WILLSON, C. J. (after stating the facts as above).

The testimony was conflicting as to whether appellant's employés in charge of its engine, as was required by law (Sayles' Ann. Civ. St. 1897, art. 4507), blew the whistle and rang the bell thereof as the train approached the crossing. It is not contended that the evidence was not sufficient to support a finding by the jury that in those respects appellant was negligent. The contention is that the judgment is erroneous because the evidence showed the deceased to have been guilty of negligence contributing to the cause of her death, and did not show that her perilous position was discovered by appellant's employés, or, if it was, that it was discovered in time to enable them in the exercise of proper care to avoid inflicting upon her the injury resulting in her death.

The evidence was undisputed that the deceased did not stop and look or listen for the train before crossing in front of it. It was undisputed that had she done so she could have seen, if she could not have heard it approaching from the south; but the fact that she did not so stop, or look, or listen did not as matter of law establish that she was negligent. Railway Co. v. Chapman, 57 Tex. 75; Railway Co. v. Frugia, 43 Tex. Civ. App. 48, 95 S. W. 563; Railway Co. v. Anderson, 76 Tex. 251, 13 S. W. 196. The question therefore is: Was there other evidence which, when considered in connection with that fact, required the court to say as a matter of law that deceased was guilty of contributory negligence? There was evidence that the train was due to pass the point where the accident occurred at about 9 o'clock on the morning it occurred, and that deceased knew it was due to pass at about that time. There was evidence that on the morning of the accident the train was 12 or 15 minutes late. There was no evidence showing that deceased knew it was late, and that it had not passed the crossing; nor was there any evidence showing that she knew the time of the day, and that it was about time for it to pass. There was no evidence showing about how many trains usually passed over the crossing during a day. There was evidence that a high wind was blowing from the south, and there was evidence that deceased was wearing a bonnet so tied on and about her head, ears, and face as to render it more difficult than it otherwise would have been for her to hear or see the train as it approached the crossing. There was evidence that by looking to her right across the field as she ran toward the crossing she could have seen the train approaching from a point on the railroad at least 250 to 300 yards south of and to the crossing. And, finally, there was evidence that without looking to the right or to the left she ran along the public road to the crossing and in front of the train as it reached the same.

The test which should be applied in determining whether the testimony referred to required the court as matter of law to say deceased was guilty of negligence or not is: Should it be said that the minds of reasonable men fairly might have differed upon the question as to whether in going upon the crossing under the circumstances shown by said testimony she acted as an ordinarily prudent person would have acted or not? Railway Co. v. Ives, 144 U. S. 417, 12 Sup. Ct. 679, 36 L. Ed. 485. We think reasonable men fairly might have differed as to the nature of her act, and that the issue properly was submitted to the jury. A reasonable man fairly might have concluded, it seems to us, that if deceased knew it was about the time the train was due to pass the crossing, she was ignorant of the fact that it was running behind its schedule time, and that it had not passed; or that, if she knew it had not passed, she was ignorant of the fact that it was about the time for it to pass. In the absence of evidence showing how trains usually approached and passed the crossing, instead of indulging the presumption that deceased should have expected the train to approach and...