Kansas City, M. & O. Ry. Co. of Texas v. Starr

• Decision Date: 28 March 1917
• Docket Number: (No. 1141.)
• Parties: KANSAS CITY, M. & O. RY. CO. OF TEXAS v. STARR et ux.
• Court: Texas Court of Appeals

194 S.W. 637

KANSAS CITY, M. & O. RY. CO. OF TEXAS v. STARR et ux.

(No. 1141.)

Court of Civil Appeals of Texas. Amarillo.

March 28, 1917.

Rehearing Denied May 2, 1917.

Appeal from District Court, Wilbarger County; J. A. Nabers, Judge.

Action by J. B. Starr and wife against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiffs, and defendant appeals. Affirmed.

H. G. McConnell, of Haskell, L. W. Allred, of Chillicothe, and H. S. Garrett, of San Angelo, for appellant. Berry, Stokes & Morgan, of Vernon, for appellees.

BOYCE, J.

This appeal is from a judgment in favor of J. B. Starr and wife, Edna Starr, awarding them damages on account of the death of their minor son, J. B. Starr, Jr., a child a little under 11 years old at the time of his death, which occurred on November 26, 1915. It was alleged by plaintiffs that a footpath, commonly used by the public, with defendant's knowledge and consent, crossed the tracks of the defendant in the town of Odell, and that, as their boy was crossing the tracks along this footpath some cars were suddenly, and without warning, bumped over the crossing, running over the little boy, and injuring him so that he died on the next day; that the defendant was negligent in the movement of said cars, in that the same were moved by a pile-driving machine, incapable of switching or moving cars except by a sudden and violent movement; that no warning was given by the blowing of whistle or ringing of bell, and no lookout stationed at the end of the car to be moved, to warn those who might be on the track at the crossing. The defendant denied that it was negligent, and pleaded that the boy was himself negligent in going upon the track in front of the car, and that the plaintiffs were guilty of contributory negligence in permitting the child to go upon the tracks of the defendant.

The tracks of the defendant company ran through the town of Odell in a northerly and southerly direction. At the place of the accident there were three tracks; the west track being called the passing track. The middle track was the main track, and the east track was known as the house track. About 200 yards south of the depot a path ran across these tracks. This path had been used by the employés of the railroad company and the public generally for a long time, with knowledge on the part of the defendant and without protest, having been originally used in going to the depot, as first established. For some time before the accident defendant had a bridge crew working out of Odell, boarding in box cars which stood on the passing track at Odell. In their work they used a pile-driving machine, which consisted of a stationary engine, furnishing the power to operate the pile driver, placed on a car and connected with the wheels, so that it could propel itself and handle a car of material. The crew also used a motor car, and went to and from their work from Odell on the pile driver and motor car. The pile driver usually stood at night on the passing track. It was equipped with a whistle, but had no bell, and did not have the power or equipment to do regular switching. On the day of the accident the pile driver took out a flat car loaded with ties, and the foreman desired to place the empty flat car, when he returned to Odell that evening, on the house track, so that it could be picked up by the local freight train. When he came in at noon he noticed that there were four cars of loaded cotton standing on the house track, near the south end of the track, in such position that there was not room enough for him to get the empty flat car on the tracks and clear the derail, so that it would be necessary to move the loaded cars a few feet to the north before he could get the flat car on the track. The bridge crew were working about 2½ miles south of town, and when they quit work for the evening the foreman sent most of the men in on the motor car, with instructions to release the brakes on the four cars preparatory to shoving them further up the track. It was realized that the pile driver would have to hit the cars hard to move them, and it was the intention to have it run against them with what momentum it could gain. One of the crew, on arrival of the motor car, climbed up on the ladder at the northwest end of the car farthest north, released the brake, and went back and released the brakes on the other cars. About this time a railway clerk and one of the crew fastened one of the doors to one of the cars, walking around the north end of the cars; another person passed by the car about this time. The car farthest north was standing at this time a few feet across the footpath referred to. None of the parties releasing the brakes and fastening the door, just referred to, noticed any children around the car at the time. After performing the service referred to, the railway employés walked off some 70 feet to the southwest and watched the pile driver come in from the south and strike the cars; some discussion being had among some of the men as to whether it could move them. The testimony is conflicting as to whether the pile driver whistled, but there is testimony sufficient to support a finding that it did not. No lookout was stationed at the north end of the cars; the attention of the men being directed to the movements of the pile driver, as stated. As the pile driver struck and the cars moved, a child screamed, and those near, on hurrying to the place, found the little Starr boy on his hands and knees a few feet west from the front end of the car farthest north and about 8 feet north of the path. The track at this place was in a slight cut, and a younger brother, about 6 years old, of the injured boy, was standing crying on the embankment near his brother. The older boy was found to be hurt, the muscles and flesh being torn from his leg below the knee, and he died from the shock the next day. It was "dusky dark" and a "right smart of a sand storm was blowing" at the time of the accident.

The plaintiff J. B. Starr lived on the east side of the tracks, and he owned a gin which was on the west side, some 300 yards in a northwesterly direction from the place of the accident. The crossing of the track where the accident occurred was in line between the home and the gin. The smaller boy had been at the gin with his father; the mother had sent the older boy for him, and just before the accident the father had directed the two boys to go home, and they left for that purpose. Mrs. Liles, a neighbor, arrived at the gin with word of the accident in about 8 or 10 minutes, according to plaintiff's testimony, after the boys left. No one appears, from the record, to have seen the boys from the time they left the gin until after the accident.

The jury found specifically: That the defendant was guilty of negligence, "in the matter of bumping the cars with the pile-driving machine, handled by the crew in charge of it, in the manner they did, or in using the said pile-driving engine outfit to bump said cars, or in failing to give a signal by blowing a whistle"; that the defendant was guilty of negligence "in the matter of not keeping a lookout for persons crossing at or about the path"; that such acts of negligence proximately caused the injury to the boy; that the path was generally used by the public, with the knowledge and permission of the defendant; that the boy was not negligent in being at the place he was injured at the time he was; and that the plaintiffs were not guilty of negligence in allowing the boy to cross the tracks at the time and place he did.

The general principles of law governing the decision of such cases are well settled. In the case of T. & P. Railway Co. v. Watkins, 88 Tex. 20, 29 S. W. 233, the Supreme Court announces the law thus:

"The true rule is that it is the duty of the servants of the railroad company, operating its trains, to use reasonable care and caution to discover persons on its track, and a failure to use such care and caution is negligence on the part of such company, for which it is liable in damages for an injury resulting from such negligence, unless such liability is defeated by the contributory negligence of the person injured, or of the person seeking to recover for such injury; and the circumstances under which the party injured went upon the track are merely evidence upon the issue of contributory negligence. If such circumstances show that the party injured was a wrongdoer or trespasser at the time of the injury, the issue of contributory negligence is, as a general rule, established as a matter of law, but not so in all cases. It results from the above that it was the duty of the railroad to use ordinary or reasonable care to discover and warn defendant in error, whether she be considered a trespasser or a mere licensee, and a failure to use such care was negligence, rendering the railroad liable for such damage as resulted therefrom, unless, under all the circumstances, defendant in error was guilty of negligence contributing proximately to her injury."

See, H. & T. C. Ry. Co. v. Sympkins, 54 Tex. 622, 38 Am. Rep. 632; M., K. & T. Ry. Co. v. Malone, 102 Tex. 269, 115 S. W. 1158; Ft. W. & D. C. Ry. Co. v. Longino, 54 Tex. Civ. App. 87, 118 S. W. 201; Id., 103 Tex. 250, 126 S. W. 8; St. Louis & S. F. Ry. Co. v. West, 174 S. W. 287.

It is appellee's theory that the boys, in obedience to the command of their father, were on the way home, using the footpath referred to; that as the older boy passed around the end of the car it was moved suddenly, as before described, and the injury resulted. This theory of the manner in which the accident happened is consistent with all the facts proven. Appellant has practically conceded that the finding of the jury as to negligence on its part in the sudden movement of the car, without warning and without having put a lookout in front of it, cannot be successfully attacked, but by its first seven assignments asserts,...