Paris & G. N. R. Co. v. Lackey

• Citation: 171 S.W. 540
• Decision Date: 29 October 1914
• Docket Number: (No. 1341.)
• Parties: PARIS & G. N. R. CO. v. LACKEY.
• Court: Court of Appeals of Texas

171 S.W. 540

PARIS & G. N. R. CO. v. LACKEY.

(No. 1341.)

Court of Civil Appeals of Texas. Texarkana.

October 29, 1914.

Error from District Court, Lamar County; A. P. Dehoney, Judge.

Action by J. T. Lackey against the Paris & Great Northern Railroad Company. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.

Tracks 1 and 2 in plaintiff in error's (hereinafter referred to as defendant) yards at Paris ran north and south. The distance between the west rail of track 1 and the east rail of track 2 was 7 feet and 7 inches. Cars set opposite, or passing, each other on the tracks would be 29 or 30 inches apart. In July, 1911, defendant in error (hereinafter referred to as plaintiff) was employed by defendant, and had been during the preceding seven months, as a general "roustabout." He helped in defendant's blacksmith shop, and repaired and helped to ice and sweep out passenger cars used by defendant in its business as an interstate carrier. On the morning of July 23, 1911, plaintiff had assisted in cleaning and icing coaches set on track 1, about ready to be sent out in one of defendant's trains, and had walked north between the two tracks, by the side of the cars standing on track 1, and, while in the act of picking up certain tools lying between the tracks, was struck by an engine moving north on track 1 at a speed of 3 or 4 miles an hour. He claimed he was injured as a result of the accident, and that defendant was liable to him for damages he thereby suffered, because of negligence on its part, first, in constructing tracks 1 and 2 so close together; second, in failing, through its employés in charge of the engine, to use due care to avoid injury to him after said employés discovered him to be in a place of danger from the engine; and, third, in failing to warn him of the approach of the engine to the point where he was engaged in picking up the tools. In the charge of the court each of these grounds of negligence was submitted to the jury, and they were authorized to find against defendant on each or all of them. A general verdict in plaintiff's favor having been returned, and judgment entered accordingly, defendant prosecuted this appeal.

Andrews, Ball & Streetman, of Ft. Worth, and Wright & Patrick, of Paris, for plaintiff in error. Love & Hutchison, of Paris, for defendant in error.

WILLSON, C. J. (after stating the facts as above).

In the view we take of the case as made by the testimony in the record, it is believed the appeal can be sufficiently disposed of by briefly stating the conclusions reached, without specific reference to the assignments of error.

1. The trial court erred in submitting to the jury an issue as to whether or not defendant was guilty of negligence in constructing tracks 1 and 2 so close together. In reaching this conclusion, we have not thought it necessary to first determine whether, on the facts shown by the testimony, negligence of which plaintiff had a right to complain could have been predicated on the nearness of tracks 1 and 2 to each other or not, for it is clear, if defendant was guilty of negligence in constructing the tracks so close together, its negligence in that respect was not a proximate cause of the injury to plaintiff. If he was struck by the engine, it was because of the position he occupied with reference to track 2, and it did not appear that it was necessary, in the discharge of his duty, for him to assume that position because of the proximity of track 1, or that the nearness of that track to track 2 had anything to do with his assuming that position. In the position he occupied he would have been struck as he was had tracks 1 and 2 been 50 instead of 7 and a fraction feet apart.

2. The trial court further erred in submitting to the jury an issue as to "discovered peril." Unless the testimony of the witness Williams as to declarations made to him by the engineer the next day, or later, after the accident, tending to show that he might have done more than he did to avoid it, should be considered, there was nothing in the evidence heard to support a finding that plaintiff was in danger from the...