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

• Decision Date: 05 May 1909
• Citation: 120 S.W. 269
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. JAMES et al.
• Court: Texas Court of Appeals

120 S.W. 269

MISSOURI, K. & T. RY. CO. OF TEXAS v. JAMES et al.

Court of Civil Appeals of Texas.

May 5, 1909.

On Rehearing, June 9, 1909.

Appeal from District Court, Bastrop County; Ed R. Sinks, Judge.

Action by Julia James and others against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff Julia James, and against the other plaintiffs, defendant appeals. Affirmed in part, and reversed and remanded in part.

Page & Miley, for appellant. S. L. Staples and Orgain & Maynard, for appellees.

RICE, J.

On July 24, 1907, while David James, Sr., was driving a wagon and team across appellant's track in the town of Smithville, his team and wagon were struck by one of appellant's train of cars, from which he received injuries that are alleged to have been the cause of his death, which occurred in February thereafter; and this suit is brought by Julia James, his surviving widow, and her children, to recover damages therefor, alleging negligence on the part of appellant, and that his death was proximately caused therefrom. Appellant, after general and special denials, relied upon and pleaded contributory negligence of the deceased in failing to stop or look or listen for the train before driving upon its track. There was a jury trial, resulting in a verdict and judgment for the plaintiff Julia James, and in favor of the company against the children, all of whom were adults, for the reason that they were not dependent upon their deceased father for their support, from which judgment this appeal is prosecuted.

Appellant contends that, as a matter of law, deceased was guilty of contributory negligence, and that the trial court erred in not so instructing the jury, and likewise erred on account thereof in refusing to grant its motion for new trial. We overrule these contentions, because we believe the evidence required the submission of this issue to the jury. It is true that the evidence shows that the deceased did not stop before driving upon the track, but it is not shown that he did not listen for the approach of the train notwithstanding he failed to stop; and while the evidence shows that he was looking ahead, still, under the circumstances as disclosed by the record, he may have been in the exercise of ordinary care in so doing, and a failure to look or listen could not be held, per se, negligence. Frugia v. Tex. & Ft. Worth Ry. Co., 36 Tex. Civ. App. 648, 82 S. W. 815. This case is essentially different in several respects in its fact from the case of I. & G. N. R. R. Co. v. Edwards, 100 Tex. 22, 93 S. W. 106, wherein the Supreme Court held that Edwards was guilty of contributory negligence, as matter of law, in this: That in the Edwards Case the track was not obstructed, but the view was open, and the cars could have been seen for some distance, and the plaintiff testified that he did not look or listen; while in this case the track was shown to have been obstructed, and some of the testimony was to the effect that, even if deceased had looked, he would have been unable, on account of said obstructions, to have seen the approaching train, and it is not shown that he did not listen. In Boyd v. St. Louis & Southwestern Ry. Co., 108 S. W. 813, the Supreme Court, Judge Brown delivering the opinion, reversing the judgment of this court reported in 105 S. W. 520, where it had been held that Boyd, as matter of law, was guilty of contributory negligence, said, among other things: "That to authorize the Court of Civil Appeals to render judgment for a railroad company in an action for injuries to a person struck by a train at a street crossing on the ground of contributory negligence, the evidence of contributory negligence must be so conclusive that reasonable minds cannot differ as to the conclusions to be drawn therefrom." The same rule, it seems to us, would apply to the trial court. We therefore overrule the assignments raising this contention.

We likewise think there was sufficient evidence of negligence on the part of appellant to require at the hands of the court a submission of this issue to the jury, and overrule appellant's assignments on this subject.

It was alleged by appellees that the peril of deceased was discovered by the operatives of the train in time to have prevented the collision, and the evidence justified the submission of this issue to the jury; and in charging thereon, the court gave the following: "Or if you believe from a preponderance of the evidence that the servants of defendant company operating the engine of the train which caused the injury, if any was inflicted, discovered him upon the track, and after such discovery the said servants failed to use all the means at hand, consistent with the safety of the train, and by the use of ordinary care, to stop the train and prevent striking him, then you will find for the plaintiff Julia James, and assess her damages as hereinafter charged, unless you find for the defendant as hereinafter charged." By its second proposition under this assignment appellant contends that "the charge of the court as given makes the defendant liable, regardless of whether or not the servants of defendant company operating the engine of the train...