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

• Decision Date: 15 December 1920
• Docket Number: (No. 1723.)
• Citation: 227 S.W. 347
• Parties: PANHANDLE & S. F. RY. CO. et al. v. HAYWOOD.
• Court: Texas Court of Appeals

227 S.W. 347

PANHANDLE & S. F. RY. CO. et al. v. HAYWOOD.

(No. 1723.)

Court of Civil Appeals of Texas. Amarillo.

December 15, 1920.

Rehearing Denied January 26, 1921.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Action by Liles B. Haywood against the Panhandle & Santa Fé Railway Company and another. From a judgment for plaintiff, defendants appeal. Reversed and dismissed as to the named defendant, and affirmed as to the other defendant.

H. E. Hoover, of Canadian, Madden, Trulove, Ryburn & Pipkin, of Amarillo, and Terry, Cavin & Mills, of Galveston, for appellant.

Barrett, Childers & Deatherage, M. Cammack, and C. B. Reeder, all of Amarillo, for appellee.

BOYCE, J.

This is an appeal from a judgment awarding the appellee damages against the appellants, the Panhandle & Santa Fé Railway Company, and Walker D. Hines, as Director General of Railroads, for the death of his son and injuries to his wife, both struck by a passenger train operated on the road of the defendant company, while it was under government control. The plaintiff was employed as a pumper at the railway pumping station, about 1½ miles from the station of St. Francis. He lived with his wife and children in two box cars, furnished by the defendant company, which were detached from the running gear and set on the right of way near the pump station about 50 feet from the railroad tracks; and had been so living at such place for about 18 months before the time of the accident. The children were young, the oldest one being about 3 years old, the second the one that was killed about 20 months old, and the youngest a babe in arms. There was no inclosure around the premises, and the plaintiff and his wife were in constant apprehension of danger to the children from passing trains, and were accustomed to exercise unremitting watchfulness to prevent them from getting on the tracks. Passenger train No. 117, a fast through train, with a maximum running schedule of 60 miles per hour, was due to pass this place at about 8 o'clock p. m. on the evening in question, July 9, 1919. The train was a little late, but did arrive about sundown; the witnesses varying the time between a little before and a little after sundown. The father had just left the premises to walk to St. Francis. He supposed that the mother knew he was leaving and was watching the children, though he was mistaken in this conclusion. When about 600 feet from the premises he looked back, and saw the headlight of the engine about a mile or more away, at the same time he saw one of the children on the track, and started back, trying to attract the attention of the trainmen but did not succeed in doing so, and was about 80 feet away when the train struck the mother and child. The mother also saw the train when it was about a mile away, and started with the baby in her arms to see where the children were. She saw the 20 months old child standing on the track across one of the rails, and ran to the rescue, but was struck by the engine as she was lifting him from the track. The boy was killed and the mother injured. The train was not due to stop at this pumping station and at the time when the engineer saw the child on the track was running about 60 miles an hour. The engineer testified that he did not see the child until he was about 300 feet from him, and could not stop the train in that distance, though he did everything possible to stop as quickly as he could without injury to the train. The engineer further testified that his attention was first attracted by the older child some little distance from the track, and he blew the whistle to warn it. He then saw the mother, and later discovered the child on the track; that in the light prevailing at that time of day it was hard to distinguish objects on the track, and he was keeping a sharp lookout. The plaintiff alleged the defendants were negligent in these particulars: First, in running the train at such a high rate of speed at this place; second, in failing to keep a proper lookout to discover persons on the track; third, in failing to exercise proper care to prevent the injury after discovery of the danger. The jury found that the defendants were negligent in the two particulars first stated, and not in the third. The defendants pleaded contributory negligence on the part of the parents in failing to prevent the child from going on the track and on the part of the mother in rashly exposing herself to danger in the attempted rescue. The jury found for the plaintiff on these issues.

Suit was originally brought by the plaintiff against the railroad company. After the termination of federal control of the railroads under the act of February 8, 1920 (41 Stat. 456) the plaintiff made Walker D. Hines, the agent appointed by the President to conduct litigation of causes of action arising out of federal control, party defendant. Judgment was rendered against both defendants jointly and severally. This we think was error, as there was no liability against the railroad company in its corporate capacity. The judgment should have been against the Director General alone. We have recently expressed our views on this matter in the case of Walker D. Hines, Director General, v. W. M. Collins, 227 S. W. 332, and need not add anything to what we there said.

It is contended that the pleading and evidence were insufficient to present an independent issue of liability on the ground of negligence in the rate of speed at which the train was running in nearing the pump station. We think this position is well taken. There was no crossing at this place, no switch tracks, not even a water tank where trains stopped to water, so that there was no occasion for the trains to slow down on approach of the place, unless the fact that the family was living near the track would require this. The track at this place was graded several feet above the ground on which were located the wells, engine house, box cars, and other structures used in connection with the pumping plant, and the children were accustomed to play on the level ground in front of the box cars and near the engine house, where the father and mother could observe them. The premises were thus in a sense apart from the tracks, and there was no occasion for any one in the discharge of any duty in connection with the operation of the pumping plant to go on the track at this place. The plaintiff testified that they did not allow the children to go on the tracks, and that so far as he knew none of them had ever been on the track when a train was in sight. The country was level, and the track was straight for a distance of a mile or more on each side of the pumping station. The railroad company had the right to the exclusive use of its track at this place and did not have to anticipate a violation of this right. Ordinarily, in the absence of regulatory legislation, the railroad company may run its trains at such speed as it sees fit, and "rapidity of movement becomes evidence of negligence only when made so by the peculiar facts and circumstances surrounding the case." T. & N. O. R. R. Co. v. Langham, 95 S. W. 687; I. & G. N. R. R. Co. v. Wear, 33 Tex. Civ. App. 492, 77 S. W. 272; Railroad Co. v. Hewitt, 67 Tex. 473, 3 S. W. 705, 60 Am. Rep. 32; G., C. & S. F. Ry. Co. v. Anson, 101 Tex. 198, 105 S. W. 989; Ann. Cas. 1914B, 602 et seq. The circumstances we have detailed are, in our opinion, insufficient to authorize the finding that it was the duty of the railroad company to lessen the speed of its train at this particular part of its track in anticipation that some one might be trespassing thereon, and we agree that a charge of negligence cannot be based on the independent fact that the train was running at a high rate of speed, at this place.

The appellants further insist that the defendants owed no duty to keep a lookout for trespassers, and there could be no negligence in the failure to do this, the only liability being from injuries resulting from its negligence in failing to exercise ordinary care to avoid injury after actual discovery of the presence of the trespasser on the track. This is the law in some jurisdictions, but not in this state. It is settled by the decision of our courts that the railroad company is at all times bound to exercise ordinary care to discover persons who may be on its track, whether or not they are trespassers, and is responsible for injuries resulting from negligence in the performance of this duty, unless recovery is defeated by the contributory negligence of the trespasser; that as a rule, when the trespasser is accountable for his own acts, the fact that he has voluntarily exposed himself to the danger is conclusive evidence of his negligence and defeats recovery; but when the trespasser is a child, or other persons incapable of being charged with negligence, liability exists for injuries resulting from failure of the operatives of the railroad company to exercise ordinary care to keep a lookout. T. & O. Ry. Co. v. Watkins, 88 Tex. 20, 29 S. W. 232; M., K. & T. Ry. Co. v. Hammer, 34 Tex. Civ. App. 354, 78 S. W. 708. The jury found that the train operatives would, "in the exercise of ordinary care to keep a lookout, have discovered said peril in time in the exercise of ordinary care to have avoided said injury." We think the facts warranted the submission of this issue and the finding of the jury thereon. The fireman evidently was not looking down the track at the time. The engineer testified that he was looking, but did not see the child until within 300 feet of it. The father saw the child on the track from a distance of 600 feet or more. Several witnesses who made experiments under similar conditions, except that they were not looking out of the cab of a moving engine, but were on foot, testified that they could see a child slightly larger than this one at a distance varying from 1,700 feet to 2,700 feet, and one witness testified that he could tell that...