Kirby Lumber Co. v. Boyett

• Decision Date: 19 April 1920
• Docket Number: (No. 518.)
• Citation: 221 S.W. 669
• Parties: KIRBY LUMBER CO. v. BOYETT et al.
• Court: Texas Court of Appeals

221 S.W. 669

KIRBY LUMBER CO. v. BOYETT et al.

(No. 518.)

Court of Civil Appeals of Texas. Beaumont.

April 19, 1920.

Rehearing Denied May 5, 1920.

Appeal from District Court, Liberty County; J. L. Manry, Judge.

Action by Mrs. M. F. Boyett and others against the Kirby Lumber Company. Judgment for plaintiffs, and defendant appeals. Reversed and rendered.

Andrews, Streetman, Logue & Mobley, of Houston, for appellant.

E. B. Pickett, Jr., C. H. Cain, and P. C. Matthews, all of Liberty, for appellees.

HIGHTOWER, C. J.

Mrs. M. F. Boyett, surviving widow of J. W. Boyett, deceased, for herself, and also on behalf of four minor children of herself and said J. W. Boyett, filed this suit in the district court of Liberty county against the Kirby Lumber Company to recover damages because of the death of said J. W. Boyett, alleged to have been caused by negligence on the part of said defendant. The plaintiff recovered judgment, and defendant has appealed. We find in appellant's brief a concise, but sufficient, statement of the contentions of the parties, which is accepted by appellee as being correct and sufficient, and we adopt it:

"In so far as this appeal is concerned, the material allegations of the plaintiffs' petition may be stated succinctly as follows:

"(a) That the deceased, J. W. Boyett, was at the time when he met his death walking in an easterly direction upon and along the tram railway of the defendant, Kirby Lumber Company, in the village of Lyric.

"(b) That that part of said tram track was customarily and habitually used as a pathway by employés of the Kirby Lumber Company, both when on and off duty, and by the public generally, and that the said J. W. Boyett was at the time making use of such pathway in pursuance of the consent and permission of the Kirby Lumber Company expressly and impliedly given to employés when on and off duty, and to the public generally, to make use of that portion of said tram track for a pathway.

"(c) That, while the said J. W. Boyett was so making use of said pathway, an engine of the defendant company, coming in a westerly direction over said track, ran into and over the said J. W. Boyett, and killed him.

"(d) That the death of said J. W. Boyett proximately resulted from negligence upon the part of the defendant, Kirby Lumber Company, its servants, agents, and employés, in that the said engine was then and there being carelessly and negligently operated, without having any headlight thereon, it being then after dark, and without having a proper and reasonable lookout, and without taking any other proper and reasonable precautions to discover persons who might be in a position of peril upon or about said tram at that point, and that the death of said J. W. Boyett was due to and proximately caused by the negligent failure of the defendant, its agents and employés, to have a proper headlight upon said engine, and to keep a reasonable lookout for and to exercise ordinary care to discover that the said J. W. Boyett was in a position of peril.

"(e) That the said J. W. Boyett had been employed by the Kirby Lumber Company as hardwood foreman, and had been at work in that position during the day on which he was killed, but that, some time before he was struck by said engine and killed, his day's labors had ended, and he was not on duty at the time said engine struck and killed him, and was not then engaged in the performance of his duties as an employé of the defendant, and that he was not killed in the course of his employment.

"The answer of the defendant Kirby Lumber Company, in so far as is material to be here stated, consisted of a general demurrer, a general denial, and plea of contributory negligence; it being alleged by the defendant that the said J. W. Boyett, at the time when he sustained injuries which resulted in his death, was guilty of negligence which contributed to cause his death, in that he was then and there lying upon the tram track of defendant, and was then and there in a state of intoxication, or was asleep upon said track, or, in any event, was lying upon the said track, and was unnecessarily there, with no reason for his being there, and on his way to no place at which he was required to be, and whether in an intoxicated condition, or unintoxicated, was guilty of negligence in being upon said track, and that, if he was walking upon said track, he could easily have seen and known and heard the engine which ran over and killed him as it was coming over said track, and he could just as easily and readily have walked on the side of the track, out of danger, as on the track between the rails where he was, and could have seen and known and heard the engine approaching, and could easily have gotten out of the way thereof, and that in being upon the said track under the circumstances, and in not removing himself out of the way of danger from the engine running over said track, he was guilty of negligence which contributed to bring about the injuries which resulted in his death."

The case was tried with a jury, and was submitted upon special issues, in answer to which the jury found:

(1) That the defendant was guilty of negligence in running and operating the engine which killed Boyett, without having any headlight thereon.

(2) That such negligence on defendant's part was a proximate cause of Boyett's death.

(3) That Boyett was not guilty of contributory negligence.

(4) That at the time Boyett was killed he was not intoxicated.

(5) That just prior to and at the time when Boyett was run over and killed by the engine he was lying down on the defendant's tram track.

(6) That Boyett, by the exercise of ordinary care, could not have avoided being run over by defendant's tram engine.

(7) That $15,000 would be a reasonable and fair compensation to plaintiffs as damages because of the death of said Boyett, and that Mrs. Boyett ought to have $7,000 of this amount, and the remainder should be equally divided between the four minor children.

Appellant, Kirby Lumber Company, is a corporation engaged in the manufacture and sale of lumber, and on the 8th day of February 1918, owned and operated a sawmill situated on its tram railway track in Liberty county about nine miles south of the town of Cleveland. Around this mill lived quite a number of appellant's employés, working in different capacities, and most of them lived with their families in houses built upon premises belonging to appellant, but some of them boarded and lived in a boarding house on the premises. The deceased, J. W. Boyett, was in the employ of appellant as hardwood log scaler, or foreman and log scaler, and he performed his duties under his employment out in the woods on appellant's tram track, some six or seven miles south of where the mill, boarding house, commissary, and dwelling houses were located; that is, at Lyric. This little village, Lyric, is generally referred to as the "Kirby Camp," and will so be referred to hereinafter. The woods where Boyett performed his duties was commonly referred to and designated as the "front," and we will use that term hereinafter. For the purpose of hauling logs from the "front" to the mill, and for the purpose of transporting its employés from the camp to the "front," appellant owned and operated upon its tram railway track several railroad steam engines, one of which would always be attached to one or more cabooses, which were used for the exclusive purpose of carrying the employés, deceased among them, from the camp to the "front" every morning, and then bringing them back from the "front" to the camp every evening. This engine and caboose would usually leave the Kirby camp about 6 o'clock each morning, and would usually return about 7 or 7:30 o'clock in the evening. On the morning of February 8, 1918, J. W. Boyett left his home at the Kirby camp and went out on this engine, which was operated by J. Lee Smiley as engineer, to perform his duties as log scaler for appellant at the "front," and after his day's work was completed he returned on the same engine to the Kirby camp that evening, reaching there about the usual time, just about dusk. When this engine, on which Boyett was riding, arrived at the usual stopping place that evening near the commissary at the camp, it was there stopped, and the engineer, Lee Smiley, got off the engine and tried to prevail upon Boyett to get off; but Boyett did not do so at that time, but instead remained on the engine, and a few moments later Smiley, who had stepped aside to get a drink of water, again returned to the engine, and again tried to arouse Boyett and get him off the engine, and at that time Boyett made an effort as if to get up from his seat, but did not do so, and Smiley thereupon went away and left him on the engine. The place where the engine stopped, and where Boyett should have gotten off, and where he usually got off, was a short distance from the house in which Boyett lived, and while we cannot ascertain from the state of the record the exact distance, it was undisputed that it required only three or four minutes to walk from the usual stopping place to Boyett's house.

The engine and caboose which brought Boyett from the "front" back to the camp on the evening of the accident left the "front" about 6 o'clock and about five minutes later another engine, operated by Engineer J. F. Holt and pulling a train load of logs, also left the "front," following Smiley's engine, on which Boyett was riding, to the Kirby camp, but was behind Smiley's engine some 25 or 30 minutes in reaching the camp. When Holt's engine got within about 600 or 700 yards from the commissary at the camp, it stopped at a switch stand or Y, making off from the main track for the purpose of doing some switching, and after proceeding with this switching, which it is unnecessary to mention in detail, again started up the main track in the direction of the commissary where Smiley's engine had stopped, and after proceeding about 40 or...