St. Louis Southwestern Ry. Co. of Texas v. Kilman

• Decision Date: 15 April 1905
• Citation: 86 S.W. 1050
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. KILMAN.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

86 S.W. 1050

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. KILMAN.^*

Court of Civil Appeals of Texas.

April 15, 1905.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

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

E. B. Perkins and Templeton, Crosby & Dinsmore, for appellant. Looney & Clark, for appellee.

BOOKHOUT, J.

R. Kilman brought this suit against the St. Louis Southwestern Railway Company of Texas to recover damages on account of personal injuries occasioned by the horse he was driving taking fright at a passing train. The defendant pleaded the general issue, contributory negligence, and assumed risk. There was a jury trial, which resulted in a judgment for the plaintiff for $350. The defendant's motions for a new trial were overruled, wherefore it perfected this appeal.

Conclusions of Fact.

Appellee was injured by his horse becoming frightened at one of appellant's trains on March 31, 1902, just east of Neylandville, in Hunt county, while on his way home over the Greenville and Commerce Public Road. This road and the railroad run about east and west, and nearly parallel, where the accident happened; the wagon road being north of the railroad adjacent to its right of way. There is a road extending from the Greenville and Commerce Road south, and crossing the railroad track. This crossing is called in the evidence the "Store Crossing." East of this crossing 784 feet another road extending from the main road runs south. crossing the railroad, to the schoolhouse and church, and is called the "Schoolhouse Crossing." East of this crossing 241 feet is a whistling post, and east of this about a quarter of a mile is another whistling post. About 320 feet east of the schoolhouse crossing the Greenville and Commerce Road turns north at right angles with the railroad. Just east of this turn is a skirt of timber extending to the railroad right of way. The appellee was in his buggy, driving a single horse south over this road, and as he approached the railroad track he stopped and listened for a train. Not hearing any, he turned west, not intending to cross the railroad track. When near the schoolhouse crossing he again looked and listened to see if a train was approaching. He was told by one standing near that a train was approaching from the east. Not having time to drive out of the way, he got out of his buggy and went to his horse's head, and took hold of the bridle to hold him. The horse took fright at the noise of appellant's whistle and approaching train, and threw appellee to the ground, and injured him, and broke the buggy and harness. He was about 15 feet west of the schoolhouse crossing, and in the Greenville and Commerce Road at the time. The evidence is conflicting as to whether or not the persons operating the train sounded the whistle at the whistling post farthest east for the schoolhouse crossing. The evidence is also conflicting as to whether the engineer, after discovering appellee's peril, sounded the whistle at a time when it could only have the effect of frightening appellee's horse. The verdict comprehends a finding that the statutory signal was not given for the schoolhouse crossing, and that after the engineer discovered the appellee in peril he sounded the whistle and gave a danger signal for stock, causing appellee's horse to take fright, and proximately causing the injuries complained of. In deference to the verdict, we so find, and that thereby appellee sustained damages in the amount of the verdict. We find appellee was not guilty of contributory negligence.

Conclusions of Law.

1. It is contended that the appellant did not owe to appellee the duty to give the statutory signal for the schoolhouse crossing by sounding the whistle at least 80 yards from the crossing, for the reason he had not used the crossing, and was not intending to use it. In other words, that the statute only applies to those on the crossing or about to make use of the crossing. This contention was raised by a general demurrer to the petition, which was overruled, by the refusal of special charges embracing the contention, and by the main charge, which gives the reverse of the proposition contended for. The statute provides that "a bell of at least thirty pounds weight and a steam whistle shall be placed upon each locomotive engine and the whistle shall be blown and the bell rung at the distance of at least eighty rods from the place where the railroad shall cross any public road or street and such bell shall be kept ringing until it shall have crossed such public road or stopped." It is made a penal offense, punishable by fine, for any engineer having charge of such engine to neglect to comply with this provision, and the statute further provides that "the corporation operating such railway shall be liable for all damages which shall be sustained by any person by reason of any such neglect." Rev. St. 1895, art. 4507. Was appellee within the protection of this statute? It was held by the Court of Appeals for the Second District that where a section hand returning from work on a hand car, and rightfully upon the track, was run onto by a train and injured within several hundred yards of a railroad crossing, and near enough to have the benefit of the statutory signal, the company owed him the duty to give the statutory signal for the crossing, and if, by its failure to do so, the section hand was injured, the...