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

• Decision Date: 09 December 1911
• Court: Texas Court of Appeals
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. HURDLE et al.

142 S.W. 992

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

Court of Civil Appeals of Texas. Dallas.

December 9, 1911.

Rehearing Denied January 20, 1912.

Appeal from District Court, Wood County; R. W. Simpson, Judge.

Action by George D. Hurdle and others against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiffs, defendant appeals. Affirmed.

Alex. S. Coke and Dinsmore, McMahan & Dinsmore, for appellant. M. D. Carlock and Johnson & Edwards, for appellees.

BOOKHOUT, J.

George D. Hurdle in his own behalf and as next friend for his minor daughters, Bernice Hurdle and Edith Hurdle, filed this suit in the district court of Wood county on September 12, 1910. In the petition it is averred that Mrs. Tessa Hurdle, the wife of George D. Hurdle and the mother of the two minor plaintiffs, lost her life at Winnsboro, Tex., on the 21st day of March, 1910, by reason of being struck and run over by a locomotive of appellant at the crossing of Walnut street over appellant's tracks; that Walnut street was one of the principal streets of Winnsboro, an incorporation town, and was much used by the public. The petition proceeded in considerable detail to set out the facts, wherein it was alleged defendant was negligent. The appellant answered by general denial and by pleas of contributory negligence, and set out certain particulars wherein it was alleged Mrs. Hurdle was guilty of contributory negligence.

Appellees filed a first supplemental petition which, in addition to the general denial of the appellant's answer, alleged that Mrs. Hurdle while passing over the crossing was put in great peril by the negligence of the appellant, and that the peril was so imminent as to relieve her from a charge of contributory negligence in jumping from the buggy.

The case was tried at the November term, 1910, of the court, with the aid of the jury, and the trial resulted in a verdict and judgment for the appellees in the sum of $15,000, apportioned equally. Appellant filed original and amended motions for a new trial, which motions were denied by the court, and the appellant excepted and perfected this appeal.

The first assignment is that the court erred in the sixth paragraph of its charge to the jury submitting to the jury a question of negligence of the defendant in failing to keep a flagman or watchman at the street crossing over the railroad at Winnsboro where Mrs. Hurdle lost her life, based on a finding submitted as to whether the said crossing was extraordinarily hazardous or dangerous.

The first proposition presented is that there was no evidence sufficient to support a finding by the jury that the conditions existing at the Walnut street crossing over the railroad made the crossing dangerous to travelers to such degree as demanded of the appellant to station a flagman or a watchman at the crossing; and therefore it was error to submit that issue.

Two other propositions are presented under this assignment, but their substance is embraced in the proposition above set out. These propositions are not sustained.

The town of Winnsboro contains about 3,500 inhabitants. The tracks of appellant are located near the center of the town, right at the business district, and divide the residence portion in about equal parts. Appellant's tracks pass through Winnsboro, east and west, and divide the population of the town about equally, but leaving the business houses north of the railroad. Main street, the principal street of the town, on which are many of the business houses, runs north and south, and is 70 feet wide. Walnut street is 60 feet wide, and is the next street east of Main street, and from the center of Main street to the center of Walnut street, measured on the railroad, is 655 feet. Main street and Walnut street are the principal streets of the town which run north and south, and both are commonly used by the public. Both these streets cross the railway tracks at grade. From some point west of Main street to a point east of Walnut street there are four railway tracks. The most northern track is called the "house track," the track next south of the house track is the "main line," the track next south of the main line is the "passing track," and the track south of the passing track is called the "storage track." All these tracks cross Main and Walnut streets, and are parallel, except that the house track bears away from the main track sufficiently to leave the station buildings and the express office between them. At Walnut street the distance between the center of the storage track to the center of the passing track is 14 feet, and the distance from the north rail of the storage track to the south rail of the passing track is 9 feet and 4 inches, and the distances between the passing track and the main line are the same. But the distance between the main line and the house track, which is north of the main line, is not quite so great, because the house track at that point curves in towards the main line and connects with the main line a few feet east of Walnut street. At Walnut street the main line, the passing track, and the storage track are parallel. At the crossing of Walnut street over the railroad there are crossing planks laid, which planks are about 30 feet long. From the east edge of these crossing planks to the head block of the switch stand east of Walnut street is 90 feet, and this switch stand is 315 feet east of the appellant's station house. At the Walnut street crossing a telegraph pole stands 22 feet south of the southern railway track and on the east side of Walnut street. The switch yard was within a comparatively small compass and was crossed by two streets, Walnut and Main. Appellant's depot, shipping shed and platform, scales and other objects, besides an oilhouse and two large tanks resting on high and wide pillars, were situated near the tracks and between Main and Walnut streets.

Will Beggs, the joint agent of appellant and the Marshall & East Texas Railway at Winnsboro, testified substantially as follows: When Mrs. Hurdle was killed, and for a long time prior thereto, there were usually three passenger trains, and from two to four freight trains standing, moving, and switching on defendant's tracks at Winnsboro every day from about noon until about 2 o'clock p. m. The Marshall & East Texas passenger train was due at Winnsboro at 11:50 a. m., coming in on defendant's tracks at the east end of the yard and over the crossing where Mrs. Hurdle was killed. After the passengers would get off, that train usually went down on the passing track, either heading into that track on the cut-off track or backing down the main line and coming into the passing track at the east end; in this latter event it had to pass over said crossing. That train left Winnsboro at 1:25 p. m. every day. In getting on the main track to leave Winnsboro this train either used the cut-off track or went down the passing track and passed over the Walnut street crossing. While this train was in town it moved and stood, after its arrival and before getting ready to leave, on the passing track over or near that crossing. The west-bound passenger train of defendant, coming in over that crossing, arrived there at 1:00 p. m. and left at 1:25 p. m. every day. The east-bound passenger train of defendant arrived at 12:20 p. m. and left at 1:05 p. m. every day, passing over said crossing in leaving town, as, also, did the Marshall & East Texas passenger train. The way defendant's east and west bound passenger trains passed each other at Winnsboro was that they "sawed by" each other on the cut-off track, the passing track, and the main track. Besides the passenger trains there were usually from two to four freight trains there every day between the noon hour and 2 o'clock p. m. There were an east-bound and a west-bound local freight train, and sometimes extra freight trains in there between those hours. No through freights were due there between those hours, but they sometimes got in there about that time. The through trains frequently did what we call "through" switching at Winnsboro, and the local trains did what we call "station" switching there. When any cars were to be spotted or rearranged in the yard after these trains had done their switching, the west-bound local generally did that. In doing their switching these trains generally had occasion to pass over the Walnut street crossing. They pulled cars in and out on the tracks there and passed over the crossing in doing so. All of these trains passed over that crossing in entering or leaving town, and the freight trains generally did a good deal of switching in the yard there, passing back and forth over the crossing. An oil mill, a lumber mill, and an electric light plant were situated in the eastern part of the town, and tracks going out to these plants left defendant's main line about 300 feet east of Walnut street crossing. The freight trains frequently had occasion to set out cars on these tracks, and in doing this switching they had to pass over that crossing. It is true that from about noon until about 2 o'clock in the afternoon, at the time of Mrs. Hurdle's death and prior thereto, there was a great deal of use made of the Walnut street crossing by defendant's engines and cars moving backward and forward over it in coming in and going out of town and in switching and passing each other at that station.

Will Butler testified substantially as follows: Winnsboro was an incorporated town with a population of about 3,500. The railroad of appellant ran in an east and west course through about the center of the town, dividing the residence portion of the town about equally. Most all of the business houses in the town were on the north side of the tracks. Witness, riding horseback, was crossing the tracks just in rear of Mrs. Hurdle's buggy at the time she was killed. This accident occurred where the tracks crossed Walnut street, a public...