St. Louis S. W. Ry. Co. of Texas v. Stonecypher

• Decision Date: 04 May 1901
• Citation: 63 S.W. 946
• Parties: ST. LOUIS S. W. RY. CO. OF TEXAS v. STONECYPHER.
• Court: Texas Court of Appeals

63 S.W. 946

ST. LOUIS S. W. RY. CO. OF TEXAS v. STONECYPHER.

Court of Civil Appeals of Texas.

May 4, 1901.

Appeal from district court, Hunt county; L. A. Clark, Judge.

Action by Pat Stonecypher against the St. Louis Southwestern Railway Company of Texas. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

E. B. Perkins and Perkins, Gilbert & Perkins, for appellant. Evans & Elder, for appellee.

RAINEY, C. J.

Appellee sued to recover damages for personal injuries alleged to have been caused by the negligence of appellant on June 27, 1900, at the crossing of a public street over appellant's track in the city of Greenville, by the backing of the train and freight cars, and in frightening his team after a signal had been given to appellee by an employé of appellant to drive over said crossing. The trial resulted in a verdict and judgment for appellee, from which this appeal is prosecuted.

The first and tenth assignments of error are grouped, and are as follows: "(1) The court erred in overruling defendant's general exception to plaintiff's petition, for the following reasons: Because no cause of action is shown therein, for the following reasons: (a) In that it does not allege that the persons said to have invited plaintiff to drive across the track were in the discharge of their ordinary duties in extending said invitation; (b) because it is not alleged that the persons so extending said invitation were acting within the apparent scope of their authority; (c) because it is not alleged therein that defendant was in any way responsible or bound for the acts of the persons extending such invitations; (d) because it is not alleged therein that plaintiff, in driving across at the time he did, relied upon such invitation; (e) because it is not alleged therein that plaintiff believed it was safe to drive across the track at the time he did; (f) because it was not alleged therein that plaintiff was misled by such invitation; (g) because the petition does not show that defendant was liable for the alleged damages." "(10) The court erred in the same paragraph of his charge referred to in the ninth assignment, beginning with the use of the following language: `If you further find from the evidence that, after said train had cleared said crossing, one of defendant's brakemen on said train invited the plaintiff to drive his team and wagon across said crossing, and that the plaintiff, after being so invited, started to drive across said crossing,'—because (a) the same is not made to depend upon the question of whether the brakeman, in extending the invitation, was acting either within the scope of his authority, or within the apparent scope of his authority; (b) or that the act of the brakeman in extending such invitation was the act of the defendant." Plaintiff's petition alleged that Houston street was a main thoroughfare in the city of Greenville, dedicated to public use, etc.; that many people passed along it daily; that it crossed appellant's track in the city of Greenville, and that it is daily used in reaching the residence and business portions of the city by the public, which was well known to appellant; that plaintiff was driving a gentle team, and that when within about 30 feet of appellant's track a freight train operated by its agents and servants passed the crossing, going west; that appellant stopped his team near the track; that, when said train had passed the crossing and cleared the street, the same was stopped, and that the agents and servants in charge of said train invited the plaintiff to drive his team across the said crossing; that plaintiff started his team for the purpose of crossing the track, and that, when in the act of stepping thereon, those operating the train, with knowledge of plaintiff's situation and intention to cross, or who by the exercise of ordinary care could have known these facts, negligently and carelessly, without giving any notice of the train's approach, and without giving any signal required by law, suddenly backed said train into said street, and onto plaintiff's mules, at a rapid and dangerous rate of speed, and making a loud noise, frightening plaintiff's team, and causing the same to back and turn suddenly to the right, etc., which caused his injuries. The allegations of plaintiff's petition were sufficiently full to show liability on the part of appellant, and authorize a recovery by plaintiff, if true. The court did not err in overruling the general demurrer, nor do we find any error in the paragraph of the court's charge here complained of. The evidence shows that the plaintiff was traveling along the street towards the crossing, and that when he came near the railroad there was a train pulling up to the crossing, and he stopped the team that he was driving to the wagon. The wagon and team were owned by one Isam, with whom plaintiff was traveling. It was a four-mule team, and, when they stopped, Isam took off his two front mules, because he was afraid of the train, and tied them to the rear of the wagon. When the train cleared the crossing, plaintiff drove the wagon up 15 or 20 yards, when one of the employés operating the train beckoned him to come ahead. He started to drive over said crossing, and about the time his team reached the main track, and before they stepped thereon, the agents and servants of defendant in charge of said train took knowledge of plaintiff's situation, and suddenly backed said train into said street in front of plaintiff's team, and the movement of said train and the noise thereof caused plaintiff's team to become frightened, etc. While the evidence conflicted as to whether or not one of the employés operating said train beckoned plaintiff to drive across, it is sufficient to support the jury's finding that plaintiff was invited to cross by one of defendant's employés, and the evidence authorized the court to give the instructions complained of. The employé who gave the invitation to cross being engaged in assisting in the operation of the train warranted the plaintiff in relying upon said invitation, and to act thereon in attempting to drive across.

The second assignment of error complains of the action of the trial court in overruling defendant's special exception to that part of plaintiff's petition which is as follows: "He was compelled to and had incurred an expense of $100 for doctors' bills and medical treatment for his said injuries, as follows: Dr. C. M. Cook, $40; Dr. P. A. Peak, $60; total, $100. That amount charged by each of the physicians is a reasonable charge for said...