Payne v. Hill

• Decision Date: 07 June 1922
• Docket Number: (No. 6406.)
• Citation: 242 S.W. 302
• Parties: PAYNE, Agent, v. HILL et al.
• Court: Texas Court of Appeals

Page 302

242 S.W. 302

PAYNE, Agent, v. HILL et al.

(No. 6406.)

Court of Civil Appeals of Texas. Austin.

Rehearing Denied June 7, 1922.

Appeal from District Court, McLennan County; Erwin J. Clark, Judge.

Suit by Mrs. Alda Hill and others against Walker D. Hines, who was afterwards succeeded by John Barton Payne, as Agent, in charge of the Gulf, Colorado & Santa Fé Railroad for damages for the death of named plaintiff's husband, G. E. Hill. Judgment for plaintiff against the defendant Agent, and he appeals. Reversed and remanded.

Terry, Cavin & Mills, of Galveston, and Sanford & Harris, of Waco, for appellant.

Tom M. Hamilton and J. A. Kibler, both of Waco, for appellees.

KEY, C. J.

Mrs. Alda Hill brought this suit against Walker D. Hines, who was afterwards succeeded by John Barton Payne, as Director General, and the Gulf, Colorado & Santa Fé Railroad, for the purpose of recovering damages on account of the death of G. E. (or E. E.) Hill, on August 9, 1919. J. D. Hill and M. E. Hill were also made parties to the suit. Mrs. Alda Hill alleged that she was the surviving wife of G. E. Hill, and that J. D. Hill and his wife, Mrs. M. E. Hill, were the father and mother, respectively, of G. E. Hill.

For cause of action appellees alleged that on the 7th day of August, 1919, between the hours of 4 and 6 o'clock p. m., while the said G. E. Hill was traveling along and over one of the public streets of the city of Cleburne, adjacent to the freight depot, and while he was in the act of crossing one of the tracks, where the same intersects the public street, the agents, servants, and employés of the defendant railway company suddenly and without warning, and without any alarm or signal whatever, and without having a brakeman or other person at the crossing to warn the said Hill of the danger, started a string of cars in motion across the public street, over the track on which the said deceased Hill was crossing; that at the time said string of cars was started it was standing with the end car thereof just about even with the line of the street, and with the portion of the street commonly and habitually used by pedestrians as a walkway; that, as said cars were suddenly put in motion, the end car struck the deceased with great force, throwing and hurling him to the ground, knocking the deceased onto the track, and that the car passed partially over him, dragging, crushing, and injuring him, to such an extent that he died from his injuries on the 9th of August, 1919.

As acts of negligence, appellees alleged that appellant was negligent (a) in suddenly starting said string of cars over said public crossing without giving any alarm or signal with the bell or whistle of the engine moving the same; (b) in failing to have a brakeman or other employé at the crossing or upon the string of cars, to warn the deceased and all other persons using the same of the danger, prior to moving said string of cars over said crossing in the manner aforesaid; that said acts of negligence, separately and collectively, were the proximate cause of the injury to and death of the deceased, as hereinbefore set out.

Appellant answered by special exception, general demurrer, and general denial, and specially answered: That if said Hill was injured as alleged, then at the time of the injury he was a trespasser, in this: That he was in the yards of appellant, and among its tracks, away from any public thoroughfare, street, or passageway; that said property was duly posted, warning the deceased and other persons from going upon or being on said property.

Appellant further specially answered that, if the deceased was injured, his injuries were the direct and proximate result of his own negligence, in this: That, notwithstanding the warning posted on the property, he went upon the same and down among the tracks, trains, and cars standing on said tracks, and away from any public thoroughfare, street, or passageway over said tracks, and laid down under one of the box cars standing on one of the tracks, and went to sleep, and that but for such negligence the deceased would not have been injured.

The case was tried to a jury, submitted on a general charge, and resulted in a general verdict in favor of appellee Alda Hill in the sum of $12,000, and in favor of appellees J. D. Hill and M. E. Hill in the sum of $500. The trial court sustained a plea in abatement presented by the railroad company, and rendered judgment against the defendant Payne, as Director General of Railroads, for the amounts awarded by the verdict of the jury, and the latter has appealed.

The undisputed testimony shows: That the deceased, Hill, received the injuries from which he subsequently died between the hours of 3:30 and 4:30, on the afternoon of August 7, 1919; that he was carried to a sanitarium in Cleburne, reaching that institution at 4:30 on the afternoon of August 7, 1919; that he died about 3 o'clock a. m., August 9, 1919; that the deceased, when found, was lying on the ground with his head a short distance from the end of the ties on what is known as the new city spur in the city of Cleburne; that his feet were extended at right angles, or practically so, with the track; that his companion, Bob King, went to the office of the Cleburne Cotton Oil Mill, and requested those in the office to phone for a physician, which was done; that Bob King then went to the residence of Mrs. Arch Ferguson, and requested her to phone for an ambulance, which was done; that when the doctor, summoned by the people at the oil mill, and the ambulance driver, Ralph Benton, and the witnesses, Mrs. O'Dowd, Mrs. Timmins, and Mrs. Ferguson, reached the injured man, he was found in the position above indicated with reference to the new city spur track of the Gulf, Colorado & Santa Fé Railroad, the injured man having his coat and shoes off and lying by him; that the point at which he was found would, if Smith street had been extended east, have been in the middle of Smith street, and was 540 feet south of the nearest street crossing the track of the Gulf, Colorado & Santa Fé Railroad, this being the street immediately adjacent to the freight depot and platform; that from the end of Smith street to where deceased was found was something like 70 or 75 yards; that the point where deceased was found was between a string of cars on the new city spur track of the Gulf, Colorado & Santa Fé Railroad, and a string of cars on the main line of the Trinity & Brazos Valley Railroad; and the ambulance driver, in order to reach the place where the deceased was, had to drive down from Shaffer street, which was 540 feet north of this point, between these two strings of cars, for a considerable distance, before reaching the injured man.

We sustain appellant's assignments of error which charge that the verdict of the jury is contrary to the great preponderance and overwhelming weight of the testimony. We copy from appellant's brief the following summary of the testimony, which is substantially correct:

"From a drawing, showing the location of the depot, ground, switches, etc., of the Gulf, Colorado & Santa Fé Railroad Company, introduced in evidence, copy of which follows page 73 of the statement of facts, it will be noted that the south end of the passenger depot is three blocks north of the south end of the freight platform, and that the freight depot is north of the freight platform; that no street crosses the track at the south end of the freight depot, but that Shaffer street crosses the tracks at the south end of the freight platform.

"The evidence shows that the first track west of the freight platform is the west house track of the Gulf, Colorado & Santa Fé; that the next track is the main line of the Trinity & Brazos Valley; that the only track of the Gulf, Colorado & Santa Fé west of the freight depot is the west house track, and that all other tracks of said railway are east of the depot; that the end of the new city spur, near which spur the injured man was found, is 240 feet south of the south line of Shaffer street, and that from the end of the new city spur to the place where the injured man was found is 310 feet; that it is 70 feet from the end of the freight platform to the point where the Trinity & Brazos Valley main line intersects the south line of Shaffer street.

"R. R. King, testifying by deposition, being the only witness for appellees on the facts of the injury, testified that he and the deceased reached Cleburne on the day of the accident, about 1 o'clock in the afternoon; after getting their lunch they went down to the Santa Fé passenger depot, and, finding that the train for Temple did not leave until between 4 and 5 o'clock, they remained at the passenger depot for a little while, and then walked down the track to the freight depot, trying to locate some people the deceased knew; that when they got to the corner of the freight depot an old man came along, and they were talking about the Old Settlers' Reunion, and that after this Hill started off to see whether he could find the people whom he knew, and who lived across the track; that he saw the accident, and saw the deceased when the train struck him in the side, knocking him down; that the deceased was crossing the track at the end of some box cars, when a switch engine bumped the cars, and he looked around and saw the draw-head on the end car strike the deceased on the side and knock him down; that after the deceased was struck by the string of cars he was under the cars, and when the cars pulled off of him the deceased got up by himself and ran about the length of two cars; that his clothing was torn from his heels up to his neck; that, when he got the length of two cars he fell, and the witness picked him up, and the deceased jerked loose and ran about the length of a car and a half, and fell, and lay there while the witness phoned for a doctor; that the deceased did not say a word; that he went to what he took to be the...