San Antonio & A. P. Ry. Co. v. Mertink

• Decision Date: 17 April 1907
• Citation: 102 S.W. 153
• Parties: SAN ANTONIO & A. P. RY. CO. v. MERTINK et al.
• Court: Texas Court of Appeals

102 S.W. 153

SAN ANTONIO & A. P. RY. CO. v. MERTINK et al.

Court of Civil Appeals of Texas.

April 17, 1907.

Rehearing Denied May 22, 1907.

Appeal from District Court, Lee County; Ed. R. Sinks, Judge.

Action by George Mertink and another against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

John T. Duncan and W. L. Eason, for appellant. Wm. O. Bowers, for appellees.

EIDSON, J.

This is an action by appellees against appellant for damages on account of the death of Mary Mertink, the wife of appellee, George Mertink, and the mother of appellee Mary Froske, alleged to have been caused by appellant's train of cars through its negligence. The trial before the court and a jury resulted in a verdict and judgment in favor of appellees in the sum of $1,000, which amount was apportioned as follows: $880 to George Mertink and $120 to Mary Froske.

Appellees' petition charged negligence against appellant as follows: "Plaintiffs further allege that the defendant's agents and servants in charge and control of said engine and cars that were run over and killed the said Mary Mertink, as aforesaid, were carelessly and negligently running the same at a high and dangerous rate of speed in approaching said crossing, and that, in approaching said crossing, the said agents and servants of the defendant in charge of said engine and cars aforesaid negligently and carelessly failed to blow the whistle or ring the bell within 80 rods from said crossing, and negligently and carelessly failed to keep the bell ringing until said train had passed said crossing; that the deceased's hearing was good, and that, if said signals had been given, she would have heard the same in time to have gotten off the track, and thus avoided the injuries which resulted in her death; that by reason of the noise made by a strong north wind at the time, and by reason of the slight noise made by the train and by reason of the carelessness and negligence of the servants and employés of the defendant in charge of the said train in failing to give the deceased any warning of its approach, the deceased, being in the exercise of ordinary care, did not and could not hear the approach of the said train until it was too late to get out of the way; that, as soon as she became aware of its approach, she made every effort in her power to get off the track, but, on account of the negligent running of said train so close upon her without warning, she was overcome with terror and thus hindered from acting as promptly as she otherwise would for her own safety; that the agents and servants of the defendant in charge of said train did discover the peril of the deceased in time to have stopped said train or to have slackened the speed thereof and to have given the deceased timely warning of its approach, that would have enabled her to have left the track and thus avoided the injuries which resulted in her death, but this they negligently and carelessly failed to do; that the agents and servants in charge of the said train as aforesaid, by the use of ordinary care, could have discovered the peril of the deceased in time to have stopped said train or slackened the speed thereof and to have given the deceased timely warning of its approach that would have enabled her to have left the track in time, and thus avoided or lessened the injuries complained of in the petition; that after the agents and servants of the defendant company in charge of said train did discover, or could by the use of ordinary care have discovered, the peril of the deceased, they carelessly and negligently failed to use all of the means in their power to avoid or lessen the injuries complained of." Appellant answered, in substance, as follows: By general denial, plea of not guilty, and that it was operating its train along its track at the time of the accident in a lawful manner, and without negligence, and it further charged that the defendant Mrs. Mary Mertink was guilty of contributory negligence, which proximately caused her death; that the said Mrs. Mertink was crossing its track in front of one of its passenger trains, and that she remained upon the track until she was struck by the defendant's train of cars; that when she got upon said track the defendant's train of cars was close to her, and that no human agency could have stopped it in time to have averted any injury to her; that the defendant's train of cars was in plain open view of said Mrs. Mertink, and that said train could have been heard and seen for many hundred yards before it reached the crossing, and that, if the said Mrs. Mary Mertink had looked or listened, she would have both heard and seen the approaching train of cars before she reached the crossing of defendant's track. The defendant charges that if she did not look and listen before going upon its track, she was guilty of negligence in failing to do so, and that, if she did look and listen, she was guilty of negligence in attempting to cross defendant's track when said cars were in such close proximity to her.

Appellant's assignments of errors, except the last, are all predicated upon the contention that the evidence shows, as matter of law, that the deceased, Mary Mertink, was guilty of contributory negligence in going upon appellant's track at the time of the accident, and that, therefore, appellees were not entitled to recover in this suit. The testimony embraced in the record shows that appellant's railway divides appellee's farm into two parts, from north to south. East of appellant's right of way and tracks is located appellee's dwelling, and which was so located long prior to the construction of said railway by appellant. West of appellant's track lies appellee's farm. The two parts of appellee's farm are connected by a crossing erected and maintained by appellant for the use of appellees. Appellant's right of...