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

• Decision Date: 22 December 1898
• Citation: 49 S.W. 670
• Court: Texas Court of Appeals
• Parties: SAN ANTONIO & A. P. RY. CO. v. GREEN.<SMALL><SUP>1</SUP></SMALL>

49 S.W. 670

SAN ANTONIO & A. P. RY. CO. v. GREEN.¹

Court of Civil Appeals of Texas.

December 22, 1898.

Appeal from district court, Harris county; John G. Tod, Judge.

Action by William Green, by his next friend, against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

O. T. Holt, for appellant. Wheeler & Rhodes, Price & Green, and Fisher, Sears & Sherwood, for appellee.

GARRETT, C. J.

William Green brought this suit, by his father, as next friend, to recover of the San Antonio & Aransas Pass Railway Company damages for personal injuries. There was a trial by jury, which resulted in a judgment in favor of the plaintiff for the sum of $8,000. The injuries were received while the plaintiff was attempting to pass over a train of the defendant which was standing across a public street in the town of Yoakum, under the following circumstances: Yoakum is a town of several thousand inhabitants. It is divided into two parts by the defendant's railroad. To the west of the railroad is the business portion of the town, while most of the residences are on the east side. William Green resided with his father, west of the railroad. The plaintiff's father was engaged in a mercantile business, and had a store in the west part of the town. After the son had gone to bed on the night of April 1, 1896, a fire broke out in the business part of the town, near the store. His father awoke him, and directed him to go to the fire as soon as he could. In going to the fire it was necessary to cross several tracks of defendant's railroad,—the main line and sidings. He hurried along, and, arriving at Gonzales street crossing, where it was necessary for him to cross in order to reach the fire, he found a freight train resting on the first track at the crossing, with an engine attached to it. He went around this train, but found the next track obstructed by a long train of cars. He attempted to cross over the train between the cars by putting his hands on two flat cars and his foot upon the drawheads. While his left foot was upon the drawheads the train was moved, and the cars came together and crushed his foot so that it had to be amputated. A strong north wind was blowing. The houses of the town were built of inflammable material, and there was danger of the fire spreading until it reached the store, The alarm of fire was generally sounded. The whistles and the bells on the defendant's engines were being blown and rung, as they usually were, to give the alarm, and numbers of people were hurrying to the fire, and crossing over the train at the Gonzales street crossing. The crossing was lighted up by the glare of the flames and an electric light. Many people were crossing over the train at the time plaintiff attempted to cross. Defendant's servants in charge of the train saw them crossing, and knew that they were constantly crossing to go to the fire. Plaintiff testified that he did not think the cars would be moved. The place where he attempted to cross was on the Gonzales street crossing. The cars had stood upon the crossing for more than five minutes. There was an ordinance of the city to prevent trains from obstructing street crossings for longer than five minutes at a time. Plaintiff was 18 years of age at the time of the injury. He was engaged at work in his father's store, as bookkeeper and clerk, at a salary of $50 a month and his board. He cannot do the work that he could before his injury, and cannot join in the general sports of young men. He was a strong, robust, and active young man, and was in good health. We conclude that the verdict of the jury is fully sustained by the evidence. The defendant's servants were not only negligent in moving the train under the circumstances, but at the time they moved it they knew that persons were actually crossing over the train, and of the danger to them in moving it. It was not necessary, for the application of the doctrine of discovered peril, that they should have seen the plaintiff, and known that he was in danger, when they saw and knew that people were crossing the train at the moment of their moving it, and in danger of being hurt. Taking into consideration the facts and circumstances attending the attempt to cross the train, we do not think that the plaintiff was guilty of contributory negligence. A fire had broken out in the neighborhood of his father's store. A general alarm was being sounded, joined in by the whistles and bells on the defendant's engines. Hundreds of people were hurrying to the scene. They found the street crossing blocked by cars, but defendant's servants in charge of the train knew that the fire was raging, and joined in giving the alarm. The evidence showed that a switchman was on the ground at the crossing, and the fireman and engineer at...