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

• Decision Date: 02 November 1910
• Citation: 131 S.W. 1157
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. ROTHENBERG et al.
• Court: Texas Court of Appeals

131 S.W. 1157

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

Court of Civil Appeals of Texas.

November 2, 1910.

Rehearing Denied November 30, 1910.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by Mrs. Belle Rothenberg and another against the Missouri, Kansas & Texas Railway Company. There was a judgment for plaintiff named, and defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, for appellant. John Lovejoy and J. W. Parker, for appellees.

FLY, J.

This is a suit instituted by Mrs. Belle Rothenberg and Mrs. Elizabeth Rothenberg against plaintiff in error to recover damages on account of the death of Harry W. Rothenberg, who was the husband of the first named Mrs. Rothenberg and the son of the second. It was alleged that the deceased was a locomotive engineer in the employ of Thomas J. Freeman, a receiver of the International & Great Northern Railroad Company, and that he was killed through the negligence of plaintiff in error. The cause was tried by jury and resulted in a verdict in favor of Mrs. Belle Rothenberg for $15,000, and in favor of Mrs. Elizabeth Rothenberg for $2,000. It was suggested and ascertained, however, after the verdict had been returned, that the latter person had died before the trial was begun, and her heirs, having made themselves parties, entered a remittitur of the $2,000, and the court rendered a judgment in favor of Mrs. Belle Rothenberg for $15,000.

The facts show that between Houston and Galveston the Galveston, Houston & Henderson Railroad Company, called the G., H. & H., owned a line of railway over which it permitted plaintiff in error and the International & Great Northern Railroad Company to operate their trains, the trains being under the management of the owner of the line. It appears that all trains that enter Galveston pass over a bridge which is about two miles long, and which, together with the single railroad track thereon, is owned by the Gulf, Colorado & Santa Fé Railway, known as the Santa Fé. On the south or island end of the bridge the different railroad trains would enter the bridge track by means of switches from the respective railroad tracks, and south of the switch connecting the G., H. & H. Railway with the bridge track was a semaphore on the line of the G., H. & H. Railway, and it, together with the different switches, was operated by a person at a station called Island, at or near the end of the bridge. The semaphore was used to indicate to trains whether or not the bridge was clear.

On the night of August 9, 1908, a train running in three sections, numbered 46, was started out of Galveston. The first and second sections were passenger trains of the plaintiff in error; the first being a regular and the second and extra train. The latter left the station at Galveston at 8 o'clock p. m. The third section of number 46 was a passenger train of the I. & G. N. Railroad Company, which left the Galveston station at or about 8:12 p. m. The trains were required to be 10 minutes apart. The second section was due at the roundhouse at 8:04 o'clock. It was four or five minutes late leaving the round house and arrived at the semaphore at Island at 8:19 or 8:20 o'clock. The third section, of which Harry W. Rothenberg was the engineer, should have left the Galveston station at 8:10 p. m., but was two or three minutes late and was more than that much behind time at Island. The second section, the extra train of plaintiff in error, was held at the semaphore at Island to permit a train from the north—that is, from the direction of Houston—to cross the bridge, and while standing on the track was run into by the third section, and Harry Rothenberg was killed. At the time of the collision the second section was off its own time and on that of the third section. It should have left the track at Island at least six minutes before the time at which the third section arrived, which was 8:26 o'clock, as indicated by the watch of the dead man, which was stopped by the collision. The second section, M., K. & T., when it stopped, extended back south from the semaphore about 600 feet, and the semaphore could be seen about 450 feet back of the rear of the second section.

The rules governing the movement of trains by plaintiff in error required that torpedoes and red signals should be carried on all engines, etc., and when a train from any cause is stopped on the main track, it must be protected by torpedoes and red signals in the manner prescribed. Another rule provides that where trains are stopped between stations, or any place where flagmen should be sent to protect the rear of the train, the engineers should "before stopping signal flagmen out by giving five short blasts of a whistle, and before starting again must call flagman in by five long blasts of the whistle; such flagman will leave one torpedo on the rails to warn any approaching train which might come up before he is able to get back to his train and the train gets under headway." The third section was authorized to reach the semaphore at 8:14, but did not reach there until 8:26 p. m. After leaving the bridge, on the island end, the track of the G., H. & H. runs straight for about 200 feet and then it curves to the left, and second section, at the time of the collision, was on the curve. No part of the train was on the straight part of the track. The third section was running at the schedule speed, about 30 miles an hour. On approaching the rear of second section, Harry Rothenberg used every means in his power to stop his engine as soon as he saw the train on the track, but was unable to stop his engine before it crashed into the rear car and killed him. The train moved about 400 feet after the full emergency brakes were thrown on the locomotive and cars. When the second section stopped on the track, where the collision occurred, a flagman with a red lantern should have been sent back 15 telegraph poles, which is about 1,500 feet, to warn the train which was known to be approaching, but this was not done. When first seen by the fireman on third section, the flagman was about 400 feet from the rear of second section and was about 40 or 50 feet from the engine of third section. The semaphore was used to protect trains on the bridge, and not to notify approaching trains of the presence of a train on the different railroad tracks. Harry Rothenberg, the deceased husband of Mrs. Belle Rothenberg, had no notice of the presence of the train of plaintiff in error being on the track until he was so close to it that he could not stop his swiftly moving train and prevent the collision, and we conclude that he came to his death through the negligence of the employés of plaintiff in error. The rules required that three red lights be displayed on the rear of the second section, but there is evidence to show that only one, or perhaps two, were placed there, and they just before the collision.

It is argued that the train did not stop between stations, but at a regular station; and therefore the rule requiring that a flagman be sent back did not apply. The rule however, is that the precaution should be taken "at any place where the flag should be sent to protect rear end of train," and common sense and reason would dictate that where trains are closely following each other, and the front train is...