Sears v. Texas & N. O. Ry. Co.

• Citation: 247 S.W. 602
• Decision Date: 15 December 1922
• Docket Number: (No. 8257.)
• Parties: SEARS et al. v. TEXAS & N. O. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Court of Appeals of Texas

247 S.W. 602

SEARS et al. v. TEXAS & N. O. RY. CO.^*

(No. 8257.)

Court of Civil Appeals of Texas. Galveston.

December 15, 1922.

Rehearing Denied January 4, 1923.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Action by Mrs. Nolia Sears and others against the Texas & New Orleans Railway Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Garrison & Watson, of Houston, for appellants.

Baker, Botts, Parker & Garwood. Charles Murphy, J. G. Donovan, and Woods, King & John, all of Houston, for appellee.

LANE, J.

This suit was brought by appellant, Mrs. Nolia Sears, as temporary administratrix of the estate of Eugene Pierce Sears, deceased, with an alternative suit for herself, as next friend for the minor children of herself and the deceased, against the Texas & New Orleans Railway Company for damages occasioned by the death of the said Eugene Sears.

The plaintiff alleged that the deceased met his death on the 29th day of July, 1920, by being struck by a train of the defendant while he was in discharge of his duties as a brakeman on a freight train of the defendant. She alleged that the death of the deceased, Eugene Sears, was the direct and proximate result of the negligence of the defendant, its agents, servants, and employees, in the following particulars:

"(a) The failure of the engineer and fireman in charge of said locomotive to maintain and keep a lookout for signals, and deceased and other flagmen that might be on said track.

"(b) In approaching said point where said lantern had been placed, as aforesaid, and in violation of the rules of the defendant company without slowing down said train and bringing same under control.

"(c) In running said train at said time and place and under said circumstances, at a high, dangerous, and unlawful rate of speed.

"(d) In failing to blow the whistle, ring the bell, and to use such other means as was at the command of said engineer and fireman to attract the attention of deceased to the approach of said train.

"(e) In continuing to operate said train at a high, excessive, unlawful, and dangerous rate of speed after the said engineer and fireman in charge of said engine discovered and realized the perilous position of deceased, and without taking any steps to prevent injuring and killing him after such perilous position of deceased was discovered and realized, which they could and should have done with the means at their command, and with perfect safety to said engine and train, and the employees and passengers thereon.

"(f) In failing to stop the train before reaching said red light, which was on said track, as aforesaid, and in easy view of the engineer and fireman in charge of said locomotive, as was their duty so to do under the rules and customs of defendant company, and all other railroad companies, which red light, under such rules and custom, was a sign and warning to them to stop said locomotive and train before reaching said light; notice here now given to the defendant company to produce upon the trial of this case the rules of said company pertaining to the use of red lights on such occasions.

"(g) In failing to so slacken the speed or stop the train when the engineer and fireman in charge of said locomotive and train saw and realized, or in the exercise of ordinary care should have seen and realized, the dangerous and perilous position of deceased, and which by the use of the means at their command, consistent with safety to said locomotive and the employees and passengers thereon, the engineer and fireman in charge thereof could have so stopped the same as to have avoided injury to the deceased."

The defendant answered by general demurrer, general denial, and by a general plea of contributory negligence and assumed risk on the part of the deceased.

It was shown that on the 28th day of July, 1920, a certain freight train of the Texas & New Orleans Railway Company, transporting an interstate shipment, left Echo, a station in Texas, of said railway company, at 12 o'clock in the night; that it was going west, and reached Liberty, Tex., about 5 o'clock the next morning; that one Kemp Thompson was the conductor in charge of said train, and that the deceased, Eugene Sears, was a brakeman thereon; that when the train reached Liberty it was divided into two sections, one section was set out on a passing track about one mile west of Liberty, and that the other section thereof was taken, in charge of the conductor, west to the town of Dayton, about 7 miles distant. The deceased, Eugene Sears, was left at the passing track of Liberty, where a part of the train was set out, with instructions to hold all trains, except first-class trains, which might be going west, by flagging them, until the engine which had taken the other part of the train west to Dayton had returned to Liberty.

Passenger trains are known and called first-class trains. A passenger train, known as No. 101, was due to arrive at Liberty at 6:18 o'clock. Sears was told by the conductor to protect the engine, which had pulled a part of the train to Dayton, on its return to Liberty against all trains going west, except first-class trains; he was not to protect it against passenger train No. 101; he was not to flag that train; it had the right of way, and the conductor was not to leave Dayton on his return to Liberty until No. 101 had passed Dayton; Sears knew he was not not to flag No. 101; he was not left there to stop this No. 101 train. Sears went to sleep near the railway track, and as he started to get up train No. 101 struck and killed him. It was broad daylight when No. 101 struck Sears; the sun was up.

Conductor Kemp Thompson, witness for plaintiff, testified that he left the deceased with that part of his train which was left at Liberty; that when he left him Sears had two lanterns, one red and the other white; that the red lantern was used to signify danger; that they carry red lanterns, torpedoes, and red flags to warn trains of danger; that they used torpedoes for protection of trains; if one torpedo is put on the track and is run over by the engine, the engineer is to stop, and if he runs over two he is to slow down and look out for signals; the two exploding torpedoes mean caution; that if the engine explodes one torpedo, the engineer is warned that there is danger ahead and for him to stop at once, and if he explodes one and goes 200 or 300 feet further and explodes another, he is warned to put the train in slow, that is, to have the train under control, so that if one torpedo is exploded that means stop the train, unless the second is exploded; the second explosion means to bring the train under control, that there may be something down ahead of you; that it was the duty of Mr. Sears, if he wanted to stop a train, to put out torpedoes; that he could have put out two torpedoes as a caution, or only one if he wanted to stop the train; that it was his duty, if he wanted to protect that passenger train, to have it slow down, to put out torpedoes; that a red lantern in front of a train, however, would indicate that there was danger, independent of torpedoes; that the white lantern left with Sears is used by railroad men to work with—give signals; that the place for the red lantern as a warning of danger is on the side of the track.

From the point where Sears was struck toward the east the railroad track was straight for nearly a mile, and the view of those on the engine was in no way obstructed between these points; there are several cattle guards intervening, but they would not obstruct the view of enginemen; he found glass like that of the globe of the red lantern left with Sears at the point where he was struck; the frame part of the lantern, picked up at the place where Sears was struck, was mashed up like it had been hit by a train or something; that he could not say whether this was the frame of the red lantern or white lantern, but there was red glass at said point; that the place occupied by the engineer on the engine is about 8 feet above the track and there are windows in the front of the engine cab, so situated as to allow the enginemen to see the track ahead of them.

Charley Helms, witness for plaintiff, testified to finding the red glass and frame of a lantern at the point where Sears was killed, as did Conductor Thompson; he also corroborates the testimony of Thompson as to the straight, unobstructed track for a mile on approaching the point of the accident from the east. He testified that at the point of the accident there were only two railroad tracks, the main line and a passing track south of the main line; that there were some weeds and grass along the side of the track that were higher than the track, but they would not obstruct the sight of the track by the enginemen.

Witness Matt Richardson, for the plaintiff, testified that he lived on the south side of the railroad opposite the point where Sears was killed, and about 50 or 55 feet south of the main line track; that there were two other houses close to his, one on each side of his; that Wiley Pauldo lived in one and Bill Hooey in the other; that the track for same distance from the point of the accident to the east seemed to be unobstructed by anything so as to prevent the enginemen from seeing down the track for a mile; that he saw Sears just before he was struck and killed. Testifying further, he said:

"When I first went out on my front gallery I saw a man lying down. His head was pointing a little northeast. He was lying still, just like a person asleep. I saw him first just as I opened my front door and started to walk out on the gallery. He was on the main line, but was lying between the main track and the switch, and he was on the same side of the track that my house was on. When I first saw the man lying there, I called to Wiley Pauldo, and asked him if he saw the man lying there on the track, and we then hollered to the man to try to wake him up, and in a minute...