Missouri, K. & T. Ry. Co. of Texas v. Scarborough

• Decision Date: 16 April 1902
• Citation: 68 S.W. 196
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. SCARBOROUGH.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

68 S.W. 196

MISSOURI, K. & T. RY. CO. OF TEXAS v. SCARBOROUGH.¹

Court of Civil Appeals of Texas.

April 16, 1902.

Appeal from district court, Trinity county; J. M. Smither, Judge.

Action by Polk Scarborough against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. On rehearing. Judgment affirmed.

Bean & Nelms, T. S. Miller, and Marshall Thomas, for appellant. H. L. Robb and Ball, Dean & Humphrey, for appellee.

On Motion for Rehearing.

NEILL, J.

We have concluded to grant this motion, and, as the question of limitations alone was considered in our former opinion, and as it will now be necessary to consider and determine all other questions raised by the assignments, our prior opinion will be withdrawn. This suit was brought by Polk Scarborough, a minor, by his next friend, against appellant, to recover $20,000 damages for personal injuries alleged to have been inflicted upon him by the negligence of the company. The defendant answered by general and special exceptions, a general denial, and a plea of two-years statute of limitations and of contributory negligence. The trial resulted in a verdict and judgment in favor of plaintiff for $10,000.

Conclusions of Fact.

On the night of the 15th of September, 1898, just after dark, the appellee, Polk Scarborough, then a minor between 10 and 11 years of age, on his way home from Saron, went upon and stopped on a skidway adjacent to a side track of appellant's railway, and while standing there a sufficient distance from the track to allow cars properly equipped and loaded to pass without coming in contact with and injuring him, intently watching an engine switching cars, with his face turned in the direction the engine was going, he was struck in the back by a piece of timber or some other object projecting from the side of a car attached to the engine in such a way as to sweep the skidway, and knocked from where he was standing to the ground, and his left arm run over and cut off above the elbow by the wheels of the car, and he incurred other physical injuries from the blow inflicted by the projection and fall from the skidway. The skidway was the property of Wm. Cameron & Co., who maintained and operated a sawmill at Saron. It was not constructed upon appellant's right of way, nor did appellant have any control over it, or right to prohibit or restrict the public or any individual from or in its use. It was constructed and used by the owners of the sawmill for the purpose of loading timbers on cars standing on the side track. It was in the nature of a platform, gradually sloping towards the railway track, upon which skids were placed several feet apart for heavy timbers to be placed upon and slid down and upon the cars in loading. Its lower edge extended several car lengths along and parallel to the side track, and there was a space from six inches to two feet from the side of a car standing upon or passing along the track to the lower edge of the skidway, which is several feet above the floor of a flat or box car when upon the side track. When struck by the projection, the appellee was standing back about four feet from the edge. All persons were at liberty to go on this skidway whenever they desired to do so, and there were no restrictions by the owners upon people in its use. It was used to work on, to stand on, and to walk on by people frequently, and appellant and its servants operating and switching its trains and cars knew, or by the exercise of ordinary care could have known, that persons were frequently walking or standing upon it. The car from which the timber or object projected was a stock car, constructed with lateral openings, through which timber or other material, if not properly loaded, could project. While the evidence is circumstantial, it is reasonably sufficient to show that the car was so loaded as to permit a piece of lumber to project through an opening on the side of the car, and extend therefrom in such a way and a sufficient distance as to sweep the skidway as far as where appellee was standing. It was negligence in appellant to run a car thus loaded in such proximity to the skidway as to strike and knock therefrom a person thereon with the timber or any other object projecting in such manner from the car. This negligence of appellant was the proximate cause of appellee's injury, and he was guilty of no negligence proximately contributing thereto. The appellant might reasonably have anticipated that some one might be on the skidway and injured by its negligence in the way appellee was on this occasion. In view of the fact that appellee was a mere child when injured, and will have to go through life, bearing its duties and burdens, with only one arm, we are not prepared to say that a judgment of $10,000 is more than will compensate him for the injury he has sustained by reason of appellant's negligence.

Conclusions of Law.

1. Appellee's petition alleges, and the evidence shows, that the injury for which the suit was brought was inflicted on the 15th day of September, 1898. His original petition was filed on the 18th day of February, 1901. The appellant specially excepted to it upon the ground that it appeared from its face it was barred by the statute of limitation. The exception was overruled, and upon the trial the jury were instructed to find against appellant on this plea upon the ground that plaintiff was a minor. The action of the court in refusing to sustain the exception and in charging the jury to find against the plea is assigned as error. In our first opinion in this case, in our desire and effort to follow the decision of the supreme court in Voight v. Railroad Co., 60 S. W. 658, in construing the act of March 4, 1897, which prescribes the time when suits for personal injuries and for other injuries resulting in death shall be instituted, we reluctantly held that this assignment was well taken, and reversed the judgment of the district court, and, upon the hypothesis that appellee's action was barred when instituted, rendered judgment in favor of appellant. We were not without grave doubts as to the correctness of our opinion at the time, but it seemed to us then to be a logical deduction from that of the supreme court in the case referred to. Since reading appellee's motion for rehearing, and considering it in the light of the able argument of his counsel supporting it, we have become satisfied that we were in error. In the Voight Case the question was whether an action brought on the 27th day of June, 1899, for a personal injury inflicted on the 19th day of August, 1897, was barred by the statute of limitation. When the injury occurred, article 3353 of the Revised Statutes of 1895, which applied to actions of this character, was in force. On the 4th day of March, 1897, an act was passed by the legislature and approved by the governor, which fixed two years the period of limitations in such actions. This act became a law on the 20th day of August of the same year. It was conceded by the supreme court for the purpose of its opinion that the cause of action accrued before the act of March 4, 1897, took effect. But it was held that the act applied to existing as well as future causes of action, and that it could not be construed in connection with article 3377, Rev. St., and make article 3353 applicable to the time within which the action should have been brought, for the reason that the act of 1897 was not passed as an amendment of that article. This is all that was decided in that case, and we do not, and never have, questioned the correctness of the opinion. The question before us in this case is a different one entirely. It is: "Is an action for a personal injury inflicted upon a minor barred in two years by the act of 1897, notwithstanding the minority of the injured party?" Except in certain class of actions, to which this does not belong, it is provided by article 3373, Rev. St., that if one entitled to bring an action be, at the time his cause of action accrues, under the age of 21 years, such disability shall not be deemed a portion of the time limited for the commencement of the action, and that such persons shall have the same time after the removal of the disability as is allowed to others. This has been the law in Texas since March 17, 1841, when the act of February 5th of that year took effect (Hartley, Dig. art. 2390), and is the law now governing this case, unless the act of March 4, 1897, in effect repealed it as to actions for injuries done to the person of a minor.

The legislative intent, if it can be discerned, should be given a statute in its construction by the courts; and, if the intention of the legislature is doubtful, such construction should be adopted as is most conformable to reason and justice. 23 Am. & Eng. Enc. Law (1st Ed.) p. 358. In conformity with these principles, whenever a statute is capable of two constructions,—one which would work manifest injustice, and the other work no injustice, —it is the duty to adopt the latter, as it will...