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

• Decision Date: 17 October 1906
• Citation: 97 S.W. 825
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. NESBIT.
• Court: Texas Court of Appeals

97 S.W. 825

MISSOURI, K. & T. RY. CO. OF TEXAS v. NESBIT.

Court of Civil Appeals of Texas.

October 17, 1906.

Rehearing denied December 5, 1906.

Appeal from District Court, Trinity County; Gordon Boone, Judge.

Action by Marvin A. Nesbit against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

See 88 S. W. 890.

T. S. Miller, Bean & Nelms, and Thomas & Rhea, for appellant. H. L. Robb, Lovejoy, Honk & Love, and Andrews, Ball & Streetman, for appellee.

FLY, J.

This is a personal injury suit instituted by appellee, a minor, through his father as his next friend, and on a trial by jury, resulted in a verdict and judgment for appellee in the sum of $20,950.

The grounds of negligence were alleged as follows: "Plaintiffs allege: That the injuries to the said Marvin A. Nesbit were directly and proximately caused and occasioned by the negligence and carelessness of the defendant, its servants, agents, and employés, in that defendant negligently had in its employment, at the time of the accident to plaintiff, an engineer and fireman, operating the engine which injured plaintiff; said engineer and fireman being wholly incompetent for their respective positions, in that the engineer was partially blind, and the fireman partially deaf, and their ability to keep a proper lookout, or observe and hear signals or alarms when given, was greatly affected and impaired. That defendant, its agents, and employés negligently and carelessly operated its engine and cars at said time, at and near said crossing, and across the same, at Willard, Tex., in a dangerous, careless, and improper manner, negligently and carelessly failing to keep any lookout for persons on or near said crossing, and particularly the plaintiff, Marvin A. Nesbit. That just before the said Marvin A. Nesbit entered upon said track, the defendant's servants in charge of said engine were warned by persons in proximity to the track that said child was approaching said track, and, notwithstanding said warning, defendant's servants failed and refused to stop said engine, and negligently and carelessly ran said child down. That at the time said warning was given, said engine was a considerable distance from said child, and that, if the engineer and fireman in charge of said engine had been competent to heed said warning, or had kept a proper lookout, or had used proper care and caution in the operation of said engine, they could have seen said child approaching, and could have seen him enter upon said track, and could have seen the danger and peril to which the child was then and there exposed in ample time to have prevented injuring him." The evidence discloses that appellee, at the time he was hurt, was a child four years of age, and that, in endeavoring to cross the railroad, he stumbled, fell, and was struck and injured by a locomotive belonging to appellant. The accident occurred at a crossing in the town or village of Willard, and was a much-frequented crossing for the people of the town as well as those of adjoining towns. The boy was at a point on a platform to the north of the main line of the railway, about 225 feet from the crossing and the train, which consisted of the locomotive and two coaches—one a passenger, and the other a combination coach—was at a water tank about 550 feet from the crossing. The platform from which the boy started was situated between two side tracks, the one nearest the main line running to a planing mill, and the other to a saw mill. The boy started from the platform in a westerly direction, along a much traveled footpath that ran between the two side tracks in the direction of a road that crossed both side tracks and the main track. When he got to the "dirt road" he turned directly south, and, after crossing the planing mill siding, attempted to cross the main track at the usual crossing, and fell, and was struck by the engine and carried for several feet and thrown from the track. At or about the time appellee started west along the side tracks to the road, the train which had stopped at a water station about 550 feet from the crossing, started for the crossing, west of which was the platform used by passengers to enter and leave the train. The engineer who occupied a position on the north side of the engine was blind in his right eye, the one that was always to the outside of the track, and he was not looking along the track in front on the north side of the the engine but was looking across to the other side of the track, and did not see the boy until the engine was almost or quite upon him, although he had, in plain and open view, traveled directly towards the railroad, with the evident intention of crossing it, for 12 or 14 feet. We find that the fireman on the engine was so deaf that he could not hear the cries of warning given by parties who saw the danger in which the child was placed. There is evidence tending to show that the emergency brakes were not applied until after the child was struck. The child was in plain view when running parallel with the track, and it was negligence not to see him. We conclude that the evidence sustains the allegations of negligence. These conclusions of fact dispose of the first five assignments of error, which question the sufficiency of the evidence to sustain the verdict.

It is contended by appellant that one of the grounds of negligence alleged by appellee and submitted by the court was the failure to see the child when it was traveling parallel with the track, but the record does not sustain that contention. The negligence alleged was a failure to see the child of tender years when he was approaching the track with the evident design of crossing it, and there is no mention of negligence when he was in any other position. The charge of the court follows the pleadings, and bases the negligence of appellant on a failure of its employés to see the child when he was approaching the crossing, and does not mention the time while he was going in a direction parallel with the main track. The engineer, however, should have anticipated that the child was going to turn at the dirt road and attempt to cross the track, and when he had made the turn he should have anticipated, as all the bystanders did, that he was going to attempt to cross in front of the locomotive; and any man should have known that if a little four year old boy made such an attempt, that he would be in a very dangerous and perilous position. One evidently anticipated danger to the child from the time he left the platform, because he says that he got up and watched the boy after he left the platform, and, as he kept coming, the witness moved forward several steps, and, when the child started to cross, witness moved towards the engine. Floyd Getsinger, a witness for appellant, stated that the boy was running, trying to beat the train, and that he was just a little ahead of the train, and that there was nothing to obstruct the view of any one on the engine. Eliza Hall, another witness for appellant, seems to have anticipated that the boy would attempt to run in front of the engine even when he was running parallel with the...