McGrew v. St. Louis, S. F. & T. Ry. Co.

• Decision Date: 22 April 1903
• Parties: McGREW v. ST. LOUIS, S. F. & T. RY. CO. et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

74 S.W. 816

McGREW v. ST. LOUIS, S. F. & T. RY. CO. et al.^*

Court of Civil Appeals of Texas.

April 22, 1903.

Appeal from District Court, Grayson County; Rice Maxey, Judge.

Action by Ethel McGrew against the St. Louis, San Francisco & Texas Railway Company and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Randell, Wood & Hassell and Wilkins, Vinson & Moore, for appellant. L. F. Parker, Head & Dillard, and Baker, Botts, Baker & Lovett, for appellees.

FISHER, C. J.

This suit was instituted in the district court of Grayson county, Tex., by Ethel McGrew, minor, through her next friend, R. B. McGrew, against the St. Louis, San Francisco & Texas Railway Company, the St. Louis & San Francisco Railway Company, the Houston & Texas Central Railroad Company, Johnson Bros. & Faught, and McCabe & Steen, to recover damages for personal injuries sustained by her on Houston avenue, in Denison, Tex., on April 19, 1901, by the horse which she was driving to a buggy becoming frightened at a passing train belonging to the defendants St. Louis & San Francisco Railroad Company and the St. Louis, San Francisco & Texas Railway Company, and being operated over the track of the Houston & Texas Central Railroad Company; said horse running away, and throwing plaintiff from the buggy onto the ground with great force and violence. The defendants McCabe & Steen answered by general demurrer and general denial, and at the close of plaintiff's evidence a nonsuit was taken by the plaintiff as to them. Defendants Johnson Bros. & Faught, not having been served with citation, were dismissed from the case. The defendants St. Louis & San Francisco Railroad Company and the St. Louis, San Francisco & Texas Railway Company answered by general demurrer, general denial, plea of contributory negligence, and sworn plea denying partnership. The defendant Houston & Texas Central Railroad Company answered by general demurrer, general denial, plea of contributory negligence, and sworn plea denying partnership. The case came on for trial before a jury, and resulted in a verdict and judgment for defendants on June 3, 1902.

It appears from the evidence that the plaintiff was riding in a buggy, driving the horse that was pulling the same, along one of the public streets of the city of Denison; and, as she approached the crossing of the Houston & Texas Central Railroad Company, she stopped in order to let a passing train go by. There is evidence tending to show that the horse was reasonably gentle. The evidence is conflicting as to the distance she stopped on the street from where it crossed the railroad track. Some of it is to the effect that she was 100 feet, and other testimony shows that she was within 25 or 30 feet, of the track; and, if she was at the latter place, she was so near the track that the engineer in control of the approaching locomotive could, by a proper lookout, have discovered her position near the track. The engineer's position in the cab was on the side of the track that the plaintiff was on, and he was looking at the crossing, and in her direction, in the approach of the locomotive and train to the crossing. He testifies that he did not see the plaintiff, but there is much evidence in the record to the effect that in approaching the crossing he could have seen her position near it.

When the locomotive got upon the crossing, and near the horse that the plaintiff was driving, the engineer sounded the whistle, which frightened the horse, causing it to give a sudden turn; throwing the plaintiff from the buggy, and thereby causing the injuries for which she seeks damages. There is evidence to the effect that the engineer, at the time that he sounded the whistle, could have seen the plaintiff near the track, and that his purpose in sounding the whistle was to give warning of his approach to the next crossing that he would reach, which was Munson street, nearly 1,500 feet distant from the street where he blew the whistle. The whistle, when blown, was not given as a signal of the approach to the crossing of the street upon which the plaintiff was located, but when sounded the engine was then crossing that street. Therefore there is some evidence which has a tendency to show that the sounding of the whistle was unnecessary, and that the purpose was not to give warning of the approach to the next crossing, which was so far away.

Although we are of the opinion that, in view of the state of the pleadings, the trial court erred in allowing the defendants 12 peremptory challenges, it is unnecessary for us to pass upon that question, as it appears that this number of challenges was allowed on the ground that there was a clash of interests between the railway company and their codefendants McCabe & Steen. The latter, by reason of the nonsuit, being out of the case, this question will not arise upon another trial.

The fifth assignment of error is as follows: "The court erred in its ruling upon the introduction of the testimony, in that it refused to permit the witness Dr. A. W. Acheson to testify that the plaintiff was not simulating the absence of pain upon the application of certain tests by him to plaintiff; he having previously testified that he had made such tests, and that they showed she had no feeling in her limbs, as shown by plaintiff's bill of exceptions No. 3." The witness was one of the attending physicians who examined the plaintiff's injuries, and treated her for the same. He testified that he employed certain tests to ascertain whether she could feel pain in her limbs. Then he was asked whether or not she was simulating the absence of pain when the tests were applied. There is much evidence in the record, introduced by the appellees, to the effect that the plaintiff was not injured to the extent claimed, and that some of her pretended injuries were feigned and simulated. The verdict of the jury is general. Therefore we are unable to determine whether...