San Antonio & A. P. Ry. Co. v. McMillan
| Decision Date | 15 May 1907 |
| Citation | 102 S.W. 103 |
| Parties | SAN ANTONIO & A. P. RY. CO. v. McMILLAN. |
| Court | Texas Supreme Court |
Action by Ada McMillan against the San Antonio & Aransas Pass Railway Company. From a judgment of the Court of Civil Appeals (98 S. W. 421), affirming a judgment for plaintiff, defendant brings error. Reversed and remanded.
A. W. Houston and S. C. Patton, for plaintiff in error. Brown, Carothers & Brown, for defendant in error.
Ada McMillan instituted this suit in the district court of Colorado county to recover of the San Antonio & Aransas Pass Railway Company damages for the death of her husband, J. A. McMillan, who was so injured that he died by a train on the defendant's track in Colorado county near to a station called Chester. Upon the trial, the jury rendered a verdict in favor of Mrs. McMillan for $3,500, and judgment was entered by the trial court for that sum. Upon appeal, the Court of Civil Appeals affirmed the judgment.
With other issues the trial court submitted to the jury the issue whether the employés upon the defendant's train discovered the deceased upon the track, and realized that he was in danger, and would not probably be able to extricate himself at such time that by the use of the means at their command they could have stopped the train, or lessened its speed, and thereby have prevented the injury. The plaintiff in error assigned error upon the charge submitting this issue in the Court of Civil Appeals, and has presented it as one of the grounds upon which the application for writ of error is based. The evidence is sufficient to authorize the jury to find the following facts: On the night of August 20, 1904, a passenger train was going west on defendant's road running at the rate of about 35 miles an hour, and, when near the station of Chester, the fireman discovered an object upon the track ahead of the train at a distance of about 400 feet, and at once began to ring the bell, and continued to ring it until after the man was struck. At a distance of about 300 feet from where the man was, the engineer discovered the object upon the track, but did not know what it was, and took no steps to check the speed of the train or in any way to warn the person, if it should be a person, that was upon the track. He did not sound the whistle until he reached a point about 200 feet from the object, when he discovered that a man was sitting upon the track bent forward with his face in his hands, and, realizing the danger of the man, and that he would probably not get out of the way, he sounded the whistle and put the brakes on the train; but he did not reverse the engine. The train struck the man and ran beyond where he was to a distance of not less than 400 feet. The train was 250 feet long, and the rear end of it was stopped 160 feet from where McMillan lay. One of the methods of stopping the train quickly is to reverse the engine. Under the conditions, with the train that was then attached to the engine, it could have been stopped by the use of all the means at hand within a distance of 400 feet. Some of these facts are controverted in the evidence; but there is sufficient testimony to sustain the verdict upon each one of them, and in determining this question we will consider only the facts which the jury might have found, although the testimony might have authorized a different conclusion. In other words, this is the most favorable finding in favor of the plaintiff that could be made upon the testimony.
If McMillan was standing upon the track when the fireman discovered him, and there was nothing to indicate that he was unable to leave the track, or that he would not do so, those operating the locomotive had the right to presume that he would get off the track and avoid the injury. It was not the duty of the servants in charge of the train to stop it under such circumstances, until they discovered that he did not intend to, or could not, leave the track. Artusy v. M. P. Ry. Co., 73 Tex. 191. 11 S. W. 177. If, when the trainmen discovered the object on the track, they, in the exercise of proper care, did not recognize it...
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