Panhandle & S. F. Ry. Co. v. Sutton

• Decision Date: 15 May 1933
• Docket Number: No. 1543-6333.,1543-6333.
• Citation: 81 S.W.2d 1005
• Parties: PANHANDLE & S. F. RY. CO. v. SUTTON, Judge, et al.
• Court: Texas Supreme Court

81 S.W.2d 1005

PANHANDLE & S. F. RY. CO. v. SUTTON, Judge, et al.

No. 1543-6333.

Commission of Appeals of Texas, Section B.

May 15, 1933.

Original mandamus proceeding by the Panhandle & Santa Fé Railway Company against the Honorable C. R. Sutton, District Judge, and others.

Writ denied.

Collins, Jackson & Snodgrass, of San Angelo, and Terry, Cavin & Mills, of Galveston, for relator.

Grisham, Patterson & Grisham, of Eastland, J. B. Cotten, of Crane, and J. A. Moore, of Odessa, for respondents.

RYAN, Commissioner.

This is an original proceeding for mandamus to compel a district judge to render judgment for relator upon a jury's verdict, certain special issues having been answered and others not answered. Thirty-five special issues were submitted to the jury, of which only fifteen were answered. Upon the return of said verdict, relator (defendant below) filed motion for judgment in its favor, which was denied by the trial court, and the case now stands on the docket of said court subject to call for trial.

Plaintiff below, George Brown, brought suit against the railway company, in the district court of Reagan county, to recover damages for personal injuries allegedly sustained by him through the company's negligence.

The petition alleged, in substance, that it became necessary for plaintiff, in the course of his business, near the town of Texon in Reagan county, to cross the railroad track at a usual and customary crossing, commonly used by pedestrians for that purpose, when it was blocked by a freight train largely composed of box cars and oil cars, approximately sixty in number; the train remained perfectly stationary on the tract for some fifteen minutes, when, believing that the train would remain upon said tract for a sufficient time, plaintiff decided to make said crossing by passing between the box cars. At that point about twenty box cars were to his west and forty to his east, with no usual or convenient crossing at either end of the train. The path crossing the track had for many months been used by pedestrians at said point, and the company, its agents and employees, knew, or by the exercise of ordinary care should have known, of the use being made of the road in question by pedestrians in crossing the track. A brakeman stood near and in plain view, when plaintiff attempted to make the crossing by going between the cars, and the brakeman knew that the plaintiff was attempting to go between them. The attempt to make the crossing was from the south side of the train, and the brakeman was standing, also, to the south of the train, some ten or twenty feet from the plaintiff, and while plaintiff was thus attempting to make the crossing, the train suddenly moved with a violent jerk and impact, causing the plaintiff to be caught, thrown, and crippled.

It is further averred in the petition that the brakeman was looking at plaintiff when he went between the cars, and while plaintiff was between said cars, said brakeman either signaled for the train to move or, knowing plaintiff's position of danger and imminent peril, failed to signal the train to remain stationary; that he know of the dangerous position of plaintiff in time to have avoided injuring him and by ordinary care, which he failed to exercise, could have prevented the train from starting, and wholly failed to exercise any care for plaintiff's safety.

In addition to said plea of discovered peril, plaintiff alleged as specific grounds of negligence, the duty of the defendant in the exercise of ordinary care, in view of the known use of said crossing by the passing public, after the lapse of five minutes, to cut said train and permit plaintiff to pass, notwithstanding which duty the defendant blocked said way and crossing at least fifteen minutes and without evincing any purpose to open the way, which was negligence and proximate cause of plaintiff's injury and damage; that it was the duty of the defendant when it blocked said footpath to ring or sound its engine bell before starting said train, to warn plaintiff of its intention and purpose to move said train, which defendant failed to do, and this was negligence and proximate cause of plaintiff's injury and damage; failure to sound the whistle of its engine before starting the train; failure of the brakeman to keep in touch with the operatives of the train in such a way as to warn them of plaintiff's danger; occupancy of said crossing for an unreasonable length of time, no notice or warning having been given plaintiff that the train would start, in which connection it was alleged that there was no other usual, customary, or available crossing for pedestrians at, or reasonably near, said place; that defendant, in unnecessarily and negligently obstructing said crossing for an unreasonable length of time, knew, or in the exercise of ordinary care should have known, that plaintiff and other pedestrians would necessarily undertake to make said crossing; all of which constituted negligence and proximate cause of the injuries and damage sustained by plaintiff. It was further alleged that, if the brakeman did not discover plaintiff's peril, it was the defendant's duty to keep a reasonable lookout at the time and place for pedestrians making the crossing, and defendant failed to keep such lookout and failed to discover plaintiff in his peril, which was negligence and a proximate cause of plaintiff's injuries and damages sustained by him.

It was further alleged that plaintiff, in attempting to pass between said box cars, stepped upon the open coupling, and with the sudden starting of the train, the coupling closed, caught plaintiff's left foot, resulting in the same being crushed; that plaintiff fell some ten or twelve feet and struck the ground on the north side of the track with great force and impact, causing certain general and permanent specified injuries. Plaintiff's age was stated as twenty-four, and judgment for $35,400 was prayed.

The defendant answered by general and special exceptions, general denial, special pleas of contributory negligence in that plaintiff was negligent in being upon said train at said time, in placing his foot on the coupler, in failing to watch for any movement of the train which might injure him, in not going around the end of the train for the purpose of crossing the track, and in not notifying some member of the train before going upon the same; also, that neither it (the defendant) nor any of its agents or employees had any knowledge of plaintiff's being in or about its train and had no reason to so anticipate; that plaintiff voluntarily placed himself in position where he might be injured, and since neither it nor its agents or employees saw the plaintiff at the time he received his injuries, it cannot allege exactly how such injuries, if any, occurred, but the same were caused by plaintiff's own negligence, and if mistaken in such respect, then such injuries resulted from an unavoidable accident.

No statement of facts has been filed, and therefore the contentions are to be determined without reference to the evidence, but we must assume that it was sufficient to go to the jury on the different issues submitted.

Relator argues here that the only basis of liability on its part, as pleaded, was that of discovered peril, and the jury having found for it on that issue, such finding is decisive of the case. This is not correct, because plaintiff's petition made issues of fact for the jury's determination, as to whether the defendant (relator) was negligent in the respects therein set forth and whether such negligence constituted a proximate cause of plaintiff's injuries and damage; defendant's answer affirmatively pleaded contributory negligence and unavoidable accident, which likewise were issues to be passed on by the jury, not only because they were so affirmatively pleaded, but in the very nature of the case had to be decided as a prerequisite to plaintiff's right to recover, or not.

Judge Sharp said in Dallas Ry. & Term. Co....