Lancaster v. Browder

• Decision Date: 22 April 1922
• Docket Number: (No. 9958.)
• Citation: 243 S.W. 625
• Parties: LANCASTER et al. v. BROWDER et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 625

243 S.W. 625

LANCASTER et al. v. BROWDER et al.^*

(No. 9958.)

Court of Civil Appeals of Texas. Fort Worth.

April 22, 1922.

Rehearing Denied June 10, 1922.

Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.

Action by J. P. Browder and others against J. L. Lancaster and others, as receivers of the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendants appeal. Affirmed.

Shropshire & Bankhead, of Weatherford, and Geo. Thompson and R. S. Shapard, both of Dallas, for appellants.

Ritchie & Ranspot, of Mineral Wells, for appellees.

DUNKLIN, J.

On November 24, 1920, Mrs. Julia Browder was struck and killed by a locomotive and train of the Texas & Pacific Railway Company. This suit was instituted by her surviving husband, J. P. Browder, and their children against J. L. Lancaster and Chas. L. Wallace, receivers of the railway company, to recover damages for her death, and, from a judgment in favor of the plaintiffs, the defendants have appealed.

The accident occurred in the town of Gordon, near the railway depot, at a place where one of the public streets or roads crosses the railway track. The time of the accident was approximately 6 or 7 o'clock in the evening, and it was dark. The train that struck Mrs. Browder was a passenger train known as the "Sunshine Special," and was running late. It was coming from the east and bound west, and Mrs. Browder was walking north over the crossing on the occasion of the accident. The train was not scheduled to stop, and did not stop, in the town of Gordon, but kept on its course west after the accident happened, apparently without knowledge on the part of its operatives that Mrs. Browder had been killed. After the train had passed the station Mrs. Browder's body was found on the north side of the railway track, some 12 or 14 feet from it, and approximately 60 feet west of the crossing. When found, life was extinct. There was a wound above her right ear, and her skull, right arm, and shoulder and right hip and right leg were all fractured. There were also bruises on her right side. Her hat was found about 30 feet east of her body, and her spectacle frame was lying 10 feet east of her body. At the time of the accident her large Collie dog was with her, and he too was killed, and his body was found on the same side of the railway track, more than 20 feet west of where Mrs. Browder's body was picked up. Gordon is a town with a population estimated by witnesses to be about 600 or 800 inhabitants, and business houses are built on both sides of the railway track. Mrs. Browder was postmistress, and at the time of the accident was going from her home on the south of the track to the post office on the north side, for the purpose of making up mail for two expected railway trains, and which was due to be ready by 8 o'clock that night. There was a mail box on the south side of the railway track, and as she was going to the post office she gathered up mail from it and proceeded on her way. Letters so taken up were found scattered along on the north side of the track west of the crossing. The locomotive was equipped with a bright electric headlight, which cast a glaring reflection down the track, and was visible to any one approaching the crossing in question and while on the crossing for a distance of approximately one-half mile down the track; the track being practically a straight track for that distance east of the crossing.

Witnesses for the plaintiff testified that they heard the locomotive sound four whistles, which were answered in a moment with one short blast, all sounded about one-half mile east of the crossing, but further testified that they heard no other whistles and heard no bell rung from that point up to the crossing. They further testified that those whistles were sounded as the train came out of a cut, which was near another public road crossing east of the one in controversy. According to further testimony given by them the residents of the town generally understood those whistles to be given for the Gordon station, and those whistles were sounded at what is commonly known as the whistling post. They further testified that the railway track was down grade from a point near the railway cut to the station. Several of the plaintiffs' witnesses testified to the speed of the train, which they estimated to be from 35 to 50 miles an hour, some of them characterizing the speed as "very rapid" and others as "running fast." One of plaintiffs' witnesses, Hugh Siggers, who had lived in Gordon for 17 years and was engaged as a clerk for one of the merchants in that town, testified in part, as follows:

"I know that headlights on engines are very bright. I know that it is very difficult to tell the exact distance a train is away from you when standing directly in front of an electric headlight. A train running down grade at a rapid rate of speed would make less noise except for the steam. I stated I had been in the railway business. I have lived in Gordon several years, and have had occasion to notice trains passing through Gordon."

The witness further testified:

"I had known Mrs. Browder right at 17 years. I saw her that evening immediately before she was killed. I saw her at the mail box, and I also walked down the sidewalk with her. She did take the mail out of the mail box. I gave her some letters to post. She was taking the mail out of the box, or had taken the mail out of the box, and I came out of the restaurant and started down the sidewalk and walked something like 10 or 15 feet with her. The conversation was she was going to the office and remarked she would carry the letters for me, unless I had business by the office. I gave her the letters and walked on down 40 or 50 feet to the corner of the bank, and then turned back. I was talking casually with her during that time. She was in her usual good spirits, pleasant and agreeable.

"After I had walked down the street with her a short ways and left her she continued on north. I turned and started back to the restaurant. I did observe Godwin and Miss Gould and Miss Rhyne near the restaurant. I observed them driving up the street and stopping there. It was dark then. I would estimate it to have been about 7 o'clock in the evening. It was on the 24th day of November, 1920. I did observe Mrs. Browder again. She was crossing the railroad track when I observed her, going onto the railroad track. I saw the train at the instant I saw Mrs. Browder on the track. The headlight was burning very bright. She was in the glare of the headlight at the moment I saw her on the track. She was walking in a peart gait, walking as she usually did; she was a fast-walking woman. She was walking fast at the moment I saw her. I would estimate the train was something about 100 feet away at that time, something like that, moving at a rapid rate of speed. There was something occurring that caused me to take my eyes off of Mrs. Browder. It was Mr. Godwin and Miss Gould and Miss Rhyne driving up in the cut-down `hoopie,' and Miss Gould went to step out of the car. Immediately after that I observed the train passing on through the town over the crossing by the station. * * *

"At the moment I saw Mrs. Browder on the track with this train approaching, had it been running at its usual and ordinary rate of speed, considering the rate she was traveling, in my opinion, she could have cleared the track. When I saw Mrs. Browder there on the tracks the dog was traveling right at her side."

Another witness, T. E. Bell, who had been in business in Gordon about 25 years, testified in part as follows:

"I think it is hard to tell the distance a train is away when it is shining in your face. * * * I had known Mrs. Browder about 30 years before she was killed. Her place of business was about 100 feet east of my store. I had seen her frequently passing back and forth over the railroad tracks. I suppose she was perfectly familiar with the tracks and the passing of the trains there. I saw her nearly every morning coming across the tracks. I believe I told her once she had better be careful about crossing the tracks, as a train might hit her. I had not seen her passing back and forward in front of moving trains any more than other parties. I think I made a remark to her about crossing the tracks. I just talked to her the one time I believe."

According to further testimony of plaintiffs' witnesses the crossing in controversy was one of the principal public crossings in use by people residing in the town and those visiting the town from the country.

In plaintiff's petition it was alleged that the defendants were guilty of negligence, which was the proximate cause of Mrs. Browder's death, in the following particulars: (1) In running the train at a "high or reckless" rate of speed; (2) in failing to ring the bell while approaching the crossing where the accident happened; (3) in failing to sound the whistle for that crossing. In answer to special issues the jury sustained each of those allegations of negligence, and further found that each act of negligence so sustained was the proximate cause of the death of Mrs. Browder.

One of the defenses specially pleaded by the defendants was, in substance, that Mrs. Browder was herself guilty of negligence which was the sole proximate cause of her death, or, at all events, proximately contributed to cause the same, in that she voluntarily and recklessly exposed herself to the danger of being struck by the train by either walking or standing upon the crossing, when she knew that the train was approaching, and knew also of the patent and obvious danger of so placing herself in that position. But in answer to other special issues the jury found against that defense.

In the court's charge the test submitted to the jury for determining whether or not there was negligence in the failure to sound the whistle and ring the bell of the locomotive before it reached the crossing was the...