St. Louis S. W. Ry. Co. v. Jacobson

• Decision Date: 15 February 1902
• Citation: 66 S.W. 1111
• Parties: ST. LOUIS S. W. RY. CO. v. JACOBSON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

66 S.W. 1111

ST. LOUIS S. W. RY. CO. v. JACOBSON.¹

Court of Civil Appeals of Texas.

February 15, 1902.

Appeal from district court, Smith county; J. G. Russell, Judge.

Action by Mrs. L. B. Jacobson against the St. Louis Southwestern Railway Company. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

E. B. Perkins and Marsh, McIlwaine & Fitzgerald, for appellant. Johnson & Edwards, for appellee.

GILL, J.

This suit was brought by Mrs. Jacobson, the appellee, for herself and as next friend of the minors, Maggie and Josie Jacobson, against the appellant, to recover damages for the death of Joseph Jacobson, which was alleged to have been caused by the negligence of appellant. Deceased was the husband of appellee, and the father of the minors. Appellant pleaded in defense general denial and contributory negligence. A trial by jury resulted in a verdict and judgment for $3,000 in favor of appellee, and $1,500 for each of the minors. From this judgment the railway company has appealed.

Deceased, who bore to the appellee and the minors the relationship alleged, was a pumper in appellant's service, and it was his duty to keep the water tank at Trinidad, on appellant's line, supplied with water for the use of its locomotives, and to watch its trestles and bridges over Trinity river, Cedar creek, and certain sloughs near the latter stream. To enable him to perform his duty of inspecting the bridges and trestles under his care, he was furnished by the company with a railway velocipede. This latter was a three-wheeled vehicle, propelled by the hands and feet, operating upon levers and pedals designed for the purpose. At the time of the accident the weather was clear and dry, and deceased was under written instructions from his master to go over the bridges and trestles after the passage of each train, and to look out for fires, loose bolts, etc. Deceased, with his family, lived at the Trinidad water tank. The tank is between Trinity river on the west and Cedar creek on the east, the latter being more than a mile east of the tank. On the day of the accident deceased went on his velocipede to Malakoff, a station on appellant's line several miles east of the last bridge under his care in that direction. The purpose of his visit to Malakoff was to purchase supplies for use at his home. While he was at Malakoff (which was a telegraph station) an extra freight train passed going west, the regular freight train being considerable behind time. This extra was flying signals which indicated that another was soon to follow, but there is no proof that deceased saw the signals. On the other hand, the evidence that he was in a store making purchases at the time this train passed, and not in a position to see it, renders it improbable that he knew it was an extra, or that another was soon to follow. A few minutes after the passing of this train he loaded two sacks of bran and some other smaller purchases on the velocipede, and started in the direction of his home, following at no great distance the extra train. Not long after he left the regular freight train arrived at Malakoff, going in the same direction, making a brief stop at that point. This train overtook deceased about 2½ miles from Malakoff, while he was going over one of the bridges which it was his duty to inspect after each train, collided with his velocipede, and so injured him that he died a few hours afterwards. From a point where a train going west would come in sight of the first of the series of bridges in question there is a heavy descending grade to within about 100 feet of the bridge on which the collision occurred. Thence west the grade is practically level. The train was running at a speed of about 20 miles an hour when it came in view of deceased, and, according to the testimony of the engineer, the deceased was actually seen entering on the bridge when the train reached that point, which is designated by the witnesses as the mouth of the cut. The engineer states that when he first saw deceased he thought he was a man with a sack on his back. Then almost instantly he thought it a cow on the bridge, whereupon he whistled for brakes, applied the emergency air brakes, and did all he could to stop the train, as he did not wish to incur the danger of running into a cow on the bridge. Then he saw it was a man on the bridge on a velocipede, and continued his efforts to stop or check the speed to avoid injuring him, but was unable to do so. That he continued to sound the whistle from the time he saw deceased, but failed to attract his attention until the engine was within one telegraph pole of him, when deceased turned and looked back and signaled him to stop. The fireman stated that he saw the deceased just after the engineer first sounded the whistle, and at once saw it was a man on a velocipede. He corroborated the engineer as to the sounding of the whistle and effort to stop. In contradiction of this, there was testimony to the effect that no whistle was sounded until the train reached the bridge on which deceased was, and some to the effect that the whistle was not sounded until after the collision. To contradict the evidence of an effort to stop the train, there was testimony to the effect that the speed of the train was not checked until the collision occurred. That from the point where the engineer claims to have first seen deceased and begun his efforts to stop the train to the point where the train was ultimately stopped was a distance of over 3,000 feet. That from the point of view to the point of collision was 2,040 feet, and there was testimony to the effect that, equipped as it was with 10 cars having air brakes in good order, and only 17 cars in the train, the others having hand brakes, it could have been stopped before it reached the point of collision. It was shown that the bridge on which the accident occurred was less than six feet from the ground, and deceased could have descended therefrom without injury, had he discovered the approach of the train in time.

The grounds relied on at the trial as a basis of recovery were: First, that Jacobson was rightfully on the track in the discharge of his duty, and that appellant's servants in charge of the train failed to use ordinary care to avoid injuring him; second, that the operatives saw him, and knew of his peril, in time to avoid the injury, and thereafter failed to use the means at their command to stop the train or lessen its speed, and thus prevent the collision.

These issues, and the defense of contributory negligence, were submitted to the jury, and the judgment is assailed mainly because of alleged errors in the court's charge and the refusal of requested charges.

The following paragraph of the court's charge is assailed as erroneous: "If you find from a preponderance of the evidence that the deceased, Joseph Jacobson, upon the occasion in question, was upon a railroad velocipede upon the track of the defendant company, in the discharge of his duty as a bridge watcher of the defendant, for the purpose of inspecting the defendant's bridges, and if you further so find that the employés of the defendant in charge of its train saw him upon the track, then it became the duty of the said employés to exercise ordinary care,—that is, that degree of care which an ordinarily careful and prudent person would exercise, under the same or similar circumstances, to make use of the appliances and equipments of the train at their command, to avoid running upon and striking said Jacobson with said train,—and this duty arose and was continuous upon the part of said employés from the time the said employés saw said Jacobson upon the track; and if the jury find, from the preponderance of the evidence, that the said employés failed to exercise such ordinary care, and that as a direct and proximate result of such failure to exercise such care that the said train ran upon and killed said Jacobson, then you should find for the plaintiffs."

It is contended under this assignment that it was error to impose the duty of care upon the train operatives until the peril of deceased was actually discovered. We understand the law...