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

• Decision Date: 01 July 1909
• Citation: 121 S.W. 588
• Court: Texas Court of Appeals
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WILCOX.<SMALL><SUP>†</SUP></SMALL>

121 S.W. 588

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WILCOX.^†

Court of Civil Appeals of Texas.

July 1, 1909.

Rehearing Denied October 9, 1909.

Appeal from District Court, Henderson County; B. H. Gardner, Judge.

Action by G. C. Wilcox against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

E. B. Perkins, Daniel Upthegrove, R. S. Neblett, and W. R. Bishop, for appellant. Watkins, Green & Richardson, for appellee.

RAINEY, C. J.

Appellee brought this suit against appellant to recover damages for personal injuries to him, caused by being struck by a timber projecting from one of appellant's freight trains operated along its track near the depot at Malakoff, Tex., about 8 o'clock at night. Defendant answered by general and special demurrer, general denial, and contributory negligence. A trial resulted in a verdict and judgment for plaintiff for $800, and defendant appeals.

The first assignment is: "The court erred in overruling defendant's special demurrer, which is substantially as follows: `The defendant specially demurs to that part of plaintiff's petition contained in the third paragraph thereof, which undertakes to charge this defendant with negligence, and says the same is insufficient, in that the allegations of negligence are mere conclusions and said allegations do not specify the character of the acts, nor the acts of negligence which plaintiff claims caused the injuries.'" The allegations of the plaintiff's petition are: "That on said date said minor plaintiff was walking near the depot in the town of Malakoff along a place commonly and habitually used by pedestrians, which use was well known to defendant and its servants, or could have been known by the exercise of ordinary care, when without any fault or negligence on the part of said plaintiff he was struck by timber or other hard substance which was projecting from a passing train; that at the time plaintiff was so struck he was walking at a safe and reasonable distance from said train, and no injury would have been done him but for the negligence of defendant and its servants in so running and operating its said train with said timber or other substance so dangerously and carelessly projecting therefrom. Plaintiff further charges that at the time of said injury he was on his way to the depot of said defendant, to which place he was going at the solicitation and request of one of the servants of said defendant, and that in so going he was traveling the most direct, practical, and public route." The contention is that the acts or facts constituting negligence for which appellant was sought to be liable are not specifically stated, but negligence is alleged as a conclusion. The allegation that he was struck by a projection from a passing train while he was walking at a safe and reasonable distance from said train and injured is a sufficient allegation to charge liability, and, if proven, it devolves upon the railway company to show that it was without fault. Railway Co. v. Smith, 74 Tex. 276, 11 S. W. 1104; McCray v. Railway Co., 89 Tex. 168, 34 S. W. 95; Railway Co. v. Easton, 2 Tex. Civ. App. 378, 21 S. W. 575. There was no error in overruling the demurrer.

The second assignment is: "The court erred in refusing defendant's special charge No. 6, which is substantially as follows: `You are instructed that if you believe from the evidence that G. C. Wilcox when struck was negligently looking back to see whether his dog had crossed in front of the train, and that his act in looking back proximately contributed to his being struck, the defendant would not be liable, and should you so believe the form of your verdict will be, "we, the jury, find for the defendant."'" The proposition is: "The evidence is sufficient to show that the injuries received by the appellee were caused by his negligence in walking at a distance of but four or five feet from a moving train in the dark, knowing the train was in motion, and, instead of looking out for his own safety, he negligently looked back to see if his dog had been caught by the passing train, which act precluded his seeing and avoiding the projecting substance which caused his injury, and the court erred in refusing special instruction directing the jury's attention to these facts." The defendant pleaded contributory negligence of plaintiff in looking back, but we are unable to see wherein plaintiff was negligent in looking back. The evidence falls to show that by looking back he was placed any nearer the train, or that he would probably not have been struck had he not looked back. There is nothing in the evidence to show that plaintiff was called upon to suspect or anticipate that the train while running through a town would have a projection that endangered the persons who commonly frequented the cinder platform where plaintiff was struck. It was dark, and the plaintiff...