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

• Decision Date: 10 February 1915
• Docket Number: (No. 2364.)
• Citation: 173 S.W. 215
• Parties: PECOS & N. T. RY. CO. v. ROSENBLOOM et al.
• Court: Texas Supreme Court

173 S.W. 215

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

(No. 2364.)

Supreme Court of Texas.

February 10, 1915.

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

Action by Mrs. M. A. Rosenbloom and others against the Pecos & Northern Texas Railway Company. There was a judgment of the Court of Civil Appeals (141 S. W. 175) affirming a judgment for plaintiffs, and defendant brings error. Affirmed.

Terry, Cavin & Mills, of Galveston, and Madden, Trulove & Kimbrough, of Amarillo, for plaintiff in error. J. A. Stanford, of Waco, and H. H. Cooper, of Houston, for defendants in error.

BROWN, C. J.

Mrs. M. A. Rosenbloom, for herself and as next friend of her minor children, Milton and Matilda Rosenbloom, and also for the use and benefit of Minnie and Isaac Rosenbloom, instituted this suit in the district court of Potter county against the Pecos & Northern Texas Railway Company, to recover damages occasioned by the negligent killing of her husband, M. A. Rosenbloom, who was father of her children and the son of Minnie and Isaac Rosenbloom.

We make the following condensed statement of the facts as found by the Court of Civil Appeals, to wit:

M. A. Rosenbloom was in the employ of the railway company as a clerk, and a part of his duty was to take the numbers and other necessary descriptive matter of cars going out in the trains that left Amarillo. There was a train of cars standing on the main track in the railway yard at Amarillo, on which M. A. Rosenbloom was engaged in his work of checking up the cars and getting the numbers for the purpose of making a proper report of same. There was a side track, which ran parallel to the main track on which the train stood, at which he was working, that lay very near to the main track; so near that, if a man were to stand between the cars on the main track as they were and the other cars passing by, he would be in danger of being knocked down by the passing cars. On the side track there was a locomotive and tender, which was, for some purpose not necessary to mention, passing on the side track so that it would pass by the cars on which Rosenbloom was at work. Discovering the engine coming when it was near him, Rosenbloom undertook to pass over in front of the approaching engine, in order to escape the danger of being struck at a place between the cars. The engineer on the locomotive which was approaching on the side track saw Rosenbloom on the track, but did not check the speed of his engine, and it caught Rosenbloom on the track and killed him. It does not appear in the statement of facts that any notice was given to Rosenbloom so that he might have escaped before the engine came so near to him.

There is no question in the case as to the relation of the plaintiffs to Rosenbloom. There is no evidence of negligence on his part, except the fact that under the conditions he attempted to make his escape on the side track in front of the approaching engine. The engineer, as we have stated, saw Rosenbloom as he started across the track, and testified that he made some attempt to stop the engine but failed to do so.

No question is made as to the amount of the verdict in this case, nor is it attempted to show that Rosenbloom was guilty of negligence except as stated above. The plaintiff in error submits to this court two proposition...