Pecos & N. T. Ry. Co. v. Suitor

• Decision Date: 18 February 1920
• Docket Number: (No. 2562.)
• Parties: PECOS & N. T. RY. CO. v. SUITOR et al.
• Court: Texas Supreme Court

218 S.W. 1034

PECOS & N. T. RY. CO. v. SUITOR et al.

(No. 2562.)

Supreme Court of Texas.

February 18, 1920.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by Mrs. Laura Suitor and others against the Pecos & North Texas Railway Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (153 S. W. 185), and defendant brings error. Affirmed.

Terry, Cavin & Mills, of Galveston, Madden, Trulove, Ryburn & Pipkin, of Amarillo, and W. F. Ramsey, of Dallas, for plaintiff in error.

Barrett & Jones and J. N. Browning, all of Amarillo, for defendant in error.

GREENWOOD, J.

This was an action by the widow and children of J. J. Suitor to recover damages of the Pecos & North Texas Railway Company for the death of J. J. Suitor while engaged in the railway company's service as a flagman.

The petition on which the case was tried alleged that Suitor's death was the proximate result of negligence on the part of employés of plaintiff in error in the operation of a switch engine, which ran over Suitor, such negligence consisting, among other things, in failure to give any warning of the engine's movement over the crossing where Suitor was at work, in failure to discover Suitor in time to avoid striking him, and in failure to avoid his injury after discovering him in a perilous position.

There was evidence to establish the following facts: Suitor was employed to prevent injury to person or property, at the railway company's crossing at Tenth street, in the city of Amarillo, by giving notice of the movement of the railway company's engines, cars, and trains. Tenth street runs east and west, and is about 47 feet in width. It is crossed by two tracks of the railway company, 8 or 10 feet apart. Suitor was injured on the west track. Until about the time of his injury, the east track was occupied by a freight train, which extended across the street, and which blocked the progress of an automobile, which was west of the tracks, headed east. The driver of the automobile was waiting for the crossing to be cleared in order to move forward on Tenth street. The freight train was in the act of moving, or was ready to move, when Suitor was injured; for the driver of the automobile went immediately to his aid, and by the time he got to Suitor the train had passed on. Suitor was run over by an engine with tender, which was backing from north of the crossing, where it had gone for water. The engine's switching crew included, in addition to the engineer and fireman, Mr. Iames, who was foreman, Mr. Lester, who was following the engine, and Mr. Waggoner, who was working in the field. Messrs. Iames, Lester, Waggoner, and Suitor carried lanterns. While backing the engineer saw three or four lanterns "out there at the Tenth street crossing." About the time the engine reached the north side of the crossing, the fireman observed four men near the flagman's shanty, which stood on the west side of the tracks and some 8 feet south of the crossing, and he believed some of them were on the track, and he testified that he thought the four were fixing to get on the footboard at the end of the tender. The fireman did not pay very much attention to what these men with lanterns were doing when the engine started up from the north side of the track going down that way. They were 60 or 75 feet from him. Street lights were upon the crossing, and the engine was equipped with headlights at each end. The engine barely came to a full stop at the north side of the crossing, or did not stop at all after leaving the water tank. No warning was given, by blowing the whistle or ringing the bell, of the engine's approach, which was faster than usual. When the tender had gone a few feet beyond the south side of the crossing, Messrs. Iames, Lester, and Waggoner stepped on the footboard, and immediately turned around so as to face south. As Foreman Iames turned, he saw Suitor within some 8 feet of the engine, on the track, near the west rail, with his back to the engine, and he at once called to Suitor and gave the engineer a stop signal, but Suitor was run over before the engine was stopped, in about 10 feet. Switchman Lester testified that the last he saw of Suitor before he got on the footboard he (Suitor) was standing in the street about 5 or 6 feet from the rails, between the automobile standing in the middle of the street and his own shanty. The engine could have been stopped within 1 to 3 feet after the emergency brakes were applied.

Under the main charge and a special charge, requested by plaintiff in error, the jury were required, before returning a verdict against the railway company, to find, from the preponderance of the evidence, as follows:

First. That Suitor received the injuries complained of while engaged in the performance of his duties to the railway company as flagman, and while exercising ordinary care, and that he died as the proximate result of such injuries.

Second. That an employé of the railway company, in charge of the switch engine, was negligent in the performance of his duties, and that such negligence was the producing cause of Suitor's death.

Third. That the failure of the operators of the switch engine to discover the position of Suitor upon the track in time to prevent his injuries was negligence, and that such negligence, if any, was the proximate cause of Suitor's death.

The trial resulted in a verdict against the railway company, and the judgment thereon was affirmed by the Court of Civil Appeals. 153 S. W. 185.

The main questions presented here are whether the jury could fairly draw the inferences from the evidence that Suitor's injuries were the proximate result of negligence of another employé in the engine's operation, and that Suitor was free of contributory negligence.

We cannot approve the contention, earnestly and strongly pressed, that because Suitor's duties required him to watch approaching engines and cars, the company owed him no duty to exercise ordinary care to avoid striking him with an approaching engine or car. The flagman's duties require him to work on and over and around tracks along which engines and trains are moving, and the railway company which contracts for the performance of duties so inherently dangerous is bound by every right consideration not to needlessly and carelessly expose the flagman to injury through failure to give such signal warnings, or through failure to keep such lookouts, or through failure to make such stops as ordinary care will dictate. The stated obligation or duty of the...