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

• Decision Date: 23 April 1908
• Citation: 110 S.W. 453
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. WALL et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

110 S.W. 453

MISSOURI, K. & T. RY. CO. OF TEXAS v. WALL et al.^*

Court of Civil Appeals of Texas.

April 23, 1908.

Rehearing Denied May 14, 1908.

Appeal from District Court, Dallas County; Richard Morgan, Judge.

Action by Millie A. Wall, for herself and as next friend of a minor child, against the Missouri, Kansas & Texas Railway Company of Texas, in which J. E. Wall and another intervened. From a judgment for plaintiff against the defendant and in favor of the defendant for costs against the interveners, defendant appeals, and the interveners file cross-assignments. Affirmed.

On November 11, 1905, Albert Wall was struck and killed by one of appellant's engines in its yards at Dallas. His widow, appellee Millie A. Wall, for herself and as next friend of her own and deceased's minor child, appellee Albert Delmer Wall, by her suit sought a recovery of damages against appellant, alleging that her husband's death was caused by its negligence in the operation of one of its trains. J. E. Wall and Sarah C. Wall, the father and mother of the deceased, intervened in the suit, and also sought a recovery against appellant. A trial resulted in a verdict and judgment in favor of Millie A. Wall and against appellant for the sum of $6,000—apportioned $4,000 thereof to her and the remaining $2,000 to her son —and in favor of appellant for costs as against the interveners. At the time he was killed deceased was about 25 years of age. He was a structural iron worker, and as such was employed by Harry Bros., a firm engaged in making steel and iron tanks, who, it seems, were doing some work at the electric light plant, situated near and to the west of appellant's line of railway going north out of Dallas to Wichita Falls. On the same side of said line of railway, but 300 to 500 yards further south, was the plant of the Dallas Brewery. From a point near the brewery going north past the electric light plant appellant's main track was straight and a little downgrade. Between the brewery and the light plant, and near the latter, was a crossing over appellant's line of railway used by the public. At the time the accident occurred the electric light people were constructing an addition to their plant, consisting of a building adjacent to and just south of their old building, and extending north and south near appellant's main track about 100 feet. For use in constructing this addition, a lot of material, including steel, gravel, and platforms, had been placed for some distance along the west side of appellant's main tract and from two to five feet from it. East of appellant's main track, and from 12 to 14 feet from it, was another track. The space between was surfaced up and furnished a good walkway. This space and the tracks on each side of it and the space west of the main track had been used for years by pedestrians having occasion to do so. In the vicinity of the light plant, about 150 feet east of the tracks, was a roundhouse for engines. On the occasion of the accident deceased and one Atherton had been to inspect some of the material placed south of the light plant, and near to the outer rail of the main track. In returning from this inspection to the light plant Atherton and deceased, it seems, were walking between appellant's main track, and the material placed along and near it, when deceased was struck by the pilot beam of an engine and killed. At the time be was so struck deceased was walking along behind Atherton, going north, with his back towards the engine which struck him, which was also going north. By an ordinance of the city of Dallas then in force, it was unlawful to run an engine within its limits at a speed greater than seven miles an hour, and another ordinance then in force made it unlawful within the city limits to run an engine without ringing the bell all the time it was in motion. It was shown that the accident occurred within the city limits. It was also shown that at the time it struck deceased appellant's train was moving at the rate of from 15 to 25 miles an hour. The evidence was conflicting as to whether the bell on the engine was ringing or not. It was sufficient to support the finding of the jury that it was not ringing, and we so find. The evidence, which will hereinafter be noted more in detail on this point, was also sufficient to support the finding of the jury that deceased was not guilty of negligence which proximately contributed to his death, and we so find.

Coke, Miller & Coke and Thomas & Rhea, for appellant. Crawford & Crawford, for appellees.

WILLSON, C. J. (after stating the facts as above).

By its first and second assignments of error appellant complains of the action of the court in refusing to peremptorily instruct the jury to return a verdict in its favor, as it requested the court to do; and by its second, third, fourth, and fifth assignments it urges that the verdict of the jury was contrary to and against the preponderance of the evidence, in that the preponderance of the evidence showed deceased to have been guilty of negligence contributing to his death. Under these assignments, it is insisted that the evidence showed (1) that deceased chose to walk in a place of danger on the west side of the main track, when he could have walked in safety on the east side thereof; and (2) that he failed to look and listen for the train which killed him, or to make any effort to discover its approach. If the act or omission is not a violation of law, the question of negligence vel non is always for the jury, when ordinary minds might differ as to the conclusion to be drawn from the testimony. It is only when no other inference than one of negligence can be drawn from the testimony that it is proper to instruct a jury that negligence has been established. Lee v. Railway Co., 89 Tex. 588, 36 S. W. 63; Sanches v. Railway Co., 88 Tex. 119, 30 S. W. 431. In this case the evidence shows that appellant's tracks and roadbed at the place where deceased was killed for years had been used as a footpath by pedestrians. Such use made of the tracks and roadbed licensed deceased to make the use he was making of same at the time he was killed. Railway Co. v. Matthews (Tex. Sup.) 88 S. W. 197. It did not appear from the evidence whether deceased before walking near enough to appellant's track to be struck by the approaching train looked therefor or not. It did appear that Atherton, who was walking immediately in front of him, did look and failed to discover the approaching train. Deceased may have looked also, and with a like result. Neither did it appear that deceased listened for the train, or that he did not listen for it. It was shown, however, that had he listened, on account of noises at the light plant and at the roundhouse, while he might have heard it had the whistle of the engine been sounded for the crossing just south of the point where he entered upon appellant's roadbed, he most probably would not have heard the movement of the train or the ringing of the bell on the engine, if it was ringing. The burden was on appellant to prove that deceased was guilty of negligence contributing to the injury which caused his death. If a failure on his part to look and listen for the train would be such negligence, appellant's contention on this ground could not be sustained, because it failed to show by evidence that he did not look and listen. But, had it been affirmatively shown that deceased failed to look and listen, or to make any effort to discover the approaching train, the court should not have instructed the jury that such failure as matter of law was negligence on his part. Such failure per se would not have been negligence. Whether an ordinarily prudent person, under all the circumstances shown by the evidence to have surrounded deceased, would have so failed, would still have been a question for the jury, and not the court, to determine. Railway Co. v. Melville (Tex. Civ. App.) 87 S. W. 863, and authorities there cited.

It appeared from the evidence that east of the main track, and between it and another track, was a space 12 or 14 feet wide, level and free from obstructions. By crossing the main track deceased could have gotten to this space and walked along it to a point opposite the light plant, and then, by again crossing the main track, have gotten to the place where he was working at the light plant. Appellant contends that he might safely have so crossed the track and walked along the space referred to and then have crossed back, and that, having choice of a safe and a dangerous route, he was guilty of negligence in selecting the dangerous one. Certainly such evidence might have supported a finding of a jury that he was negligent. But it could not be said as matter of law and independent of the other circumstances in evidence that he was. Appellees were entitled to have his conduct in choosing the route along the west side of the main track weighed, not alone, but in connection with the circumstances surrounding it as shown by the evidence; and, if so weighed, ordinary minds might have differed as to whether an ordinarily prudent person would have chosen the more dangerous route or not, the case should not have been withdrawn from the jury. The authorities relied upon by appellant do not, we think, support its contention. In Railway Co. v. Edwards (Tex. Sup.) 93 S. W. 106, Edwards was struck by a train at a crossing over its track. It appeared from his own testimony that he easily could have both seen and heard the train had he looked and listened for it, and that, without doing either, he stepped to the middle of the track in front of it. The Supreme Court said: "The case is easily distinguished from those in which this court had held that, under the facts thereof, it would have been improper for the courts to have instructed that it was the duty of the travelers to do any particular thing as a measure of due care, such as to look and listen; it being the function of the jury...