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

• Decision Date: 29 October 1900
• Citation: 59 S.W. 607
• Parties: SAN ANTONIO & A. P. RY. CO. v. BELT.
• Court: Texas Court of Appeals

59 S.W. 607

SAN ANTONIO & A. P. RY. CO. v. BELT.

Court of Civil Appeals of Texas.

October 29, 1900.

Appeal from district court, Dewitt county; James C. Wilson, Judge.

Action for injuries by George W. Belt against the San Antonio & Aransas Pass Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Proctors, for appellant. H J. Huck, Jr., for appellee.

GILL, J.

This is a suit brought by appellee to recover of appellant damages for personal injuries alleged to have been sustained by his wife in a runaway accident due to the negligence of appellant. A trial by jury resulted in a verdict and judgment for $5,000 in favor of appellee, from which the railway company has appealed. This is the third appeal. On the first the judgment was reversed because of the error of the trial court in sustaining a general demurrer to the petition. 37 S. W. 362. On the second a judgment in favor of plaintiff was reversed because of errors committed on the trial. 46 S. W. 374.

The accident is alleged to be due to the negligence of the company in permitting the noise and movement of its engine to frighten the horse which the wife and another were driving, causing him to run away. It is also alleged that the railway crossing at which the accident occurred was negligently left by the company in a bad state of repair, and that the railway company's yard master negligently caused the horse to turn from its course, and that by each and all these acts of negligence the injuries were sustained. Appellant excepted generally and specially to the petition of appellee, and answered by general denial.

Briefly stated, the facts are as follows: The plaintiff's wife and one Mrs. Tankersley were riding in a buggy drawn by a horse. Mrs. Tankersley was driving. There was evidence tending to show that the horse was gentle and not afraid of trains or engines. Plaintiff's wife and Mrs. Tankersley came down Hochheim street, in the town of Yoakum, in Dewitt county, and started across the railway tracks of appellant at that point. For a part of the width of Hochheim street the company had constructed and maintained a railway crossing, and this had for about nine years been generally used by the public of Yoakum in crossing the railway at that point. The railway company owned its right of way in fee simple, the road having been built and the title acquired prior to the location of said town. Hochheim street is a public street in the town of Yoakum, is 60 feet in width, and touches the eastern and western sides of appellant's right of way. The railway crossing connects the two ends of the street, so that, if the crossing be treated as a part of it, it is a continuous street running to and across the railway at the point in question. Neither the town nor the county authorities have ever condemned that part of the right of way so as to make it a part of the street. The crossing was maintained by the railway company for the convenience of the public, and independent of any other fact. Such use and acquiescence were shown as gave the public the right to cross at that point. There is no proof that the width of the street was outlined across the railway right of way by fencing or other structures. On the right of way at this point were the main track and four other tracks. At the time of the accident the company was engaged in repairing its tracks known as the "compress spurs"; same being the tracks next to the eastern edge of its right of way, the main track and what was known as the "team track" lying west of them. These compress spurs were not filled in the entire width of the street, but there was a temporary crossing of sand and planks over the compress tracks. This temporary crossing was from 30 to 40 feet wide. On either side of this crossing the ties and rails of the spur tracks were uncovered, and stood six or eight inches above the level of the ground. There was testimony to the effect that the eastern spur had been in an unfinished condition for a week or two; the work of repair going on during that time, and being in progress at the date of the accident. At the time of the accident appellant's engine, in charge of one Tankersley and his fireman, were on the main track. Appellee's wife and Mrs. Tankersley (wife of said engineer) were in an open buggy, driving a horse, the property of plaintiff. Mrs. Tankersley had the reins, and attempted to drive over the crossing, going from west to east. As they crossed the team track both ladies saw Tankersley on his engine, spoke to him, and received a salutation from him. After the horse crossed the team track it became frightened at the engine and ran over the main track. Just at this point appellant's yard master, Dyas, then in charge of appellant's switch crew, ran in front of the horse and tried to stop him, when the horse swerved to the north of Dyas, the buggy struck the unfinished portion of the spur tracks and overturned, and both the ladies were thrown out and injured. As to the precise details of the accident, as to the position of the engine, as to whether it was moving or standing still, and as to whether it was making a loud and unnecessary or unusual noise when the horse became frightened, there is much conflict in the evidence. There was also a conflict as to whether the horse was safe to drive in the vicinity of trains. In view of the disposition of this appeal, we deem this statement sufficient, and for a like reason forbear to comment on the evidence.

By its second assignment of error appellant complains of the following portion of the court's charge: "The law requires the railway company to restore any street or highway which its route may cross to its former condition, or to such condition as not to unnecessarily impair its usefulness, and to exercise reasonable care to keep its crossings in such reasonable repair as an ordinarily prudent person would use under similar circumstances. If you believe from the evidence that the defendant had its track or tracks across Hochheim street, in the town of Yoakum, and did not restore such street to its former state, or to such condition as not to unreasonably impair its usefulness, and that such failure to restore such street was a proximate cause of injury to plaintiff's wife, combining with other negligence of defendant or alone, you will find for plaintiff," etc. The objection to this charge is that it charges the duty imposed upon railway companies by article 4426 of the Revised Statutes, when, under the facts adduced, such article is not applicable. It is clear to our minds that the article in question applies only in cases where a railway company during the construction or in the extension of its railway lines or switches undertakes, in the exercise of the power conferred by law, to intersect or touch by its route any stream, water course, street, highway, or canal, and that, as applied to streets and highways, such absolute duty is imposed only when a railway line is constructed along or across a street or highway already established. The article reads as follows: "Such corporation shall have the right to construct its road across, along or upon any stream, water course, street, highway, plank-road, turn-pike or canal which the route of such railway shall intersect or touch; but such corporation shall restore such stream, street," etc., "thus intersected or touched, to its former state or to such state as not to unnecessarily impair its usefulness and shall keep such crossing in repair." This article appears in chapter 8 of title 94 of the Revised Statutes, which chapter is devoted to regulations with reference to the acquisition of right of way by railway companies, and the imposition of certain duties in connection with the rights conferred. Article 4438 of the same chapter forbids the use of any such street without the assent of the city, thus showing clearly that a pre-existent street was contemplated. The street in question was laid out subsequent to the acquisition of the right of way and the construction of the road. That part of the right of way is not shown to have been condemned and subjected to street purposes. But, even had this been done, the city could not have lawfully forbidden the repair of the railway tracks across the crossing, and the company in conducting such repairs would have been held only to the exercise of ordinary care to prevent injury to those using the crossing, to the finishing of its repair work within a reasonable time, and the exercise of ordinary care to maintain the crossing in a reasonably safe condition for the use of the public. By the section of the charge complained of, and especially the part which undertakes to apply the law to the facts, is imposed upon the company the absolute duty to restore the crossing to its former condition, or to such a condition as not to unnecessarily impair its usefulness. We are of opinion that under the facts shown the company was chargeable with no higher duty than the exercise of ordinary care in making the repairs undertaken with reasonable dispatch, and conducting the work with ordinary care, looking to the safety of those using the crossing as such. Or, if it should be held that the crossing was not technically a street crossing, still, since the company had by its acts invited its use as such, it was the company's duty to exercise ordinary care to keep it in a reasonably safe condition for use by the public. Railway Co. v. Warner, 88 Tex. 642, 32 S. W. 868; Railway Co. v. Able, 72 Tex. 150, 9 S. W. 871; Railway Co. v. Montgomery, 85 Tex. 64, 19 S. W. 1015. Having thus invited its use by the public, it also assumed the duty of acting towards it in all respects as if it were a lawful crossing, which involves the statutory duty of sounding the whistle or ringing the bell when approaching it. Railway Co. v. Lee, 70 Tex. 496, 7 S. W. 857; Same v. Bridges, 74 Tex. 520, 12 S. W. 210. But, the statute being complied with in this...