St. Louis, S. F. & T. Ry. Co. v. West

• Decision Date: 09 January 1915
• Docket Number: (No. 8069.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 174 S.W. 287
• Parties: ST. LOUIS, S. F. & T. RY. CO. v. WEST et al.
• Court: Texas Court of Appeals

Page 287

174 S.W. 287

ST. LOUIS, S. F. & T. RY. CO. v. WEST et al.

(No. 8069.)^†

Court of Civil Appeals of Texas. Ft. Worth.

January 9, 1915.

Rehearing Denied February 20, 1915.

Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.

Action by Bettie West and others against the St. Louis, San Francisco & Texas Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed, and judgment rendered for defendant.

Lockett & Rowe, of Ft. Worth, for appellant. G. R. Lipscomb, McCart, Bowlin, Terrell & McCart, and Theodore Mack, all of Ft. Worth, for appellees.

DUNKLIN, J.

The elevator of the Empire Grain Company, the scene of the accident hereinafter related, is situated in a suburb of the city of Ft. Worth, a short distance west of the main line of the St. Louis, San Francisco & Texas Railway Company, which, in that locality, runs practically north and south. The Arlington Heights boulevard runs east and west, and crosses the main line of the railway approximately 1,000 feet north of the elevator. A switch track runs through a shed on the east side of the elevator building. This track, which has a gradual slope from north to south, leaves the main track about 300 feet north of the boulevard, which it crosses, and diverges from the main track in a southwesterly direction until it reaches the elevator. The switch track was constructed by the railway company at the instance and for the convenience of the grain company in unloading grain from cars, but with the express agreement that the track, when constructed, should be owned by the railway company exclusively, and should be maintained, operated, and controlled by it.

On or about October 1, 1910, an engineer and fireman of the railway company undertook to place two cars in the shed of the elevator. To accomplish this the cars were kicked or shunted from a point north of the boulevard, and permitted to roll down the switch track to the elevator with no one in charge to control them or to give warning of their approach. In passing into the shed of the elevator these cars ran over and killed George W. West. Mrs. Bettie West, his widow, and Mrs. Winnie Thompson, his daughter, joined by her husband, Jack Thompson, instituted this suit against the railway company to recover damages which they allege they have sustained by reason of his death.

A trial of the suit before a jury resulted in a verdict and judgment in favor of the plaintiffs for the sum of $10,000, one-half of which amount later was remitted by them. From that judgment the defendant has appealed.

Plaintiffs based their claim of defendant's liability for the death upon allegations of negligence on the part of defendant's employés: First, in shunting the cars to the elevator in the manner indicated above, with no one in control of them; second, in failing to give prior warning to George W. West, who was walking upon the track at the time in ignorance of their approach; third, in the failure of said employés to avoid the accident by the use of means at their command, after they had discovered the perilous situation of West and his ignorance of the approach of the cars, in time to have averted the accident by the use of means then at their command.

The case was submitted to the jury by a general charge, and not upon special issues. The two specifications of negligence first mentioned were the only issues of defendant's negligence submitted, and the jury were expressly told that, unless a verdict should be returned in plaintiff's favor upon one or both of those issues, then they could not recover. In other words, the charge, in effect, affirmatively excluded any right of recovery upon the issue of negligence last mentioned.

Among other defenses, the railway company pleaded specially that deceased was guilty of negligence proximately contributing to his injury, in that he was a trespasser upon the track, and, further, in that at the time of the accident he was asleep upon the track with portions of his body extending across one of the rails, and was run over by the cars while in that position.

For six or seven years prior to the accident deceased had been employed at the plant of the Ft. Worth Furniture Company, situated a short distance immediately west of the elevator, serving in the capacities of watchman and team driver, and was familiar with the premises where the accident occurred. He resided within the city limits some distance east of the main line of the railway, and left his home between 10 and 11 o'clock on the morning of the accident, which was Sunday, telling his wife that he was going to the furniture company's plant to do some work. Upon this trip he drove a small wagon, and carried with him a gun and ammunition, which he borrowed from his son-in-law the same morning for the expressed purpose of shooting pigeons that were in the habit of feeding on wasted grain around the elevator. The cars passed over him, severing both legs, and mutilating other portions of his body. He was 58 years old, and in good health at the time of his death, but his hearing was slightly defective.

No witness testified that he saw the accident.

Otis Blair, 15 years old, who was introduced by plaintiffs, was the witness who saw the deceased last, prior to the accident. He testified in part as follows:

"I saw Mr. West before he was killed. He was sitting there by the chute leaning up against it, and his feet were out across the rails there. He was sitting in front of the chute like, and leaning back against the chute, which would be on the east side of the chute. He was sitting on the edge of the chute and leaning back. That would throw his body about half a foot from the ground; he was sitting on something about half a foot high. I did not measure it, I am just estimating the distance. * * * If a man had been up the boulevard and looking down the boulevard there would have been nothing to prevent him from seeing Mr. West sitting there; his body would be in the clear. I left him there and went home. After I left him I heard about him having been run over and killed. I heard that about a half an hour after I left. I was at home when I heard that. I never saw cars go down on the switch towards the elevator at all. * * * There was an engine switching there about an hour or so before. It was on the tracks, and I went right after they quit switching; we went down there, and the engine left, and we went there and came back home, and they came and switched some more. They had been switching there that morning. At that time my father's house was right straight across from the elevator north, just on across the Arlington Heights boulevard on the north side. * * * After I left Mr. West I did not hear a train at all. I do not know anything about the cars that run over Mr. West. The switching I have testified about occurred that morning before I left Mr. West. I stayed there with him about ten minutes. I was raking up some feed for little chickens. While I was there I did not see engine and cars passing along there anywhere. * * * When I last saw Mr. West he was sitting right down there in that 18 inches of space. He was sitting on the ground, but he was sitting on this 6-inch ledge there, and his back was leaning back against the surface — this sloping surface on the east side of the chute — and that nearest rail was under his legs at about the knees. All of his legs below the knees were over in the track. When he came around there and spoke to me his breath smelled like toddy that morning; I mean whisky toddy. I smelled whisky on his breath. He asked me if I had seen any pigeons around there, and I told him I had not, and he went there and sat down at that place as I have described to you. He pulled his hat over his eyes like any one would. I saw him pull his hat over his eyes and lean himself back against the sloping surface of that chute, and he said he was going to stay there until he got some pigeons, and I went on and left him. I did not see any pigeons there at that time. If there had been some, I would have seen them. I never saw him again alive. After I got home I had my dinner, and when I had gotten through eating my dinner some one came by and gave me the news that a man had been killed there, and I told papa I guessed that Mr. West got killed who was down there. The next morning you could see a little of blood on the track. That blood was right where the train struck him on the end of the ties where he stopped. It was between where his body was lying and the chute. It was between where I saw his body lying after he was dead and the point where he was when I left him alive last time. Before I went down there the first time to get the wheat the engine and crew had been there doing some switching. That was earlier in the morning. It is not a fact that Mr. West was already sleeping when I left there. He was not asleep when I left. When I left that gun was leaning up against the side of the chute right by him. I was with him about ten minutes. I was standing to him about as close as a man would walk up to another. I know what a drunk man is. He did not appear to be a drunk man. I thought he was sober; I never saw him drunk before. He appeared like he was sober before. If I had not smelled whisky I would not have known that he was drinking or thought anything about it. I spoke about him pulling his hat down. The sun was shining on him; he was sitting in the sun, and the sun was shining on him. The pigeons would light on the track when he was sitting under there waiting. I had never hunted pigeons, but I had seen some one else. The pigeon shooters would ordinarily get all around the elevator there, just follow them up — It is not a fact that Mr. West was already sleeping when I left there; he was not asleep when I left. When I left that gun was leaning up against the side of the chute there right by him, sloping side right by him."

That testimony was not contradicted by any witness.

J. A....