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

• Decision Date: 09 May 1914
• Docket Number: (No. 7102.)
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. BALTHROP.
• Court: Texas Court of Appeals

167 S.W. 246

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. BALTHROP.

(No. 7102.)

Court of Civil Appeals of Texas. Dallas.

May 9, 1914.

Rehearing Denied May 30, 1914.

Appeal from District Court, Hunt County; A. P. Dohoney, Judge.

Action by W. R. Balthrop against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

E. B. Perkins, of Dallas, and Crosby, Hamilton & Harrell, of Greenville, for appellant. Evans & Carpenter, of Greenville, for appellee.

RASBURY, J.

Appellee sued appellant for damages for personal injuries alleged to have been inflicted upon his wife by the negligence of appellant.

Appellee alleged that, while his wife was pursuing her way over and upon a pathway on the south side of appellant's track within the corporate limits of Wolfe City, which had been used by the public for a period of more than ten years with the knowledge and consent of appellant, a freight train approached her from the opposite direction in which she was moving, and, while passing her on a part of the track which curved toward her, she was struck by some object protruding from the cars or hurled therefrom by the movement of the train superinduced by the curve over which the train was passing at the point of accident, as well as by a loose joint in the track at said point.

Appellant on the merits tendered the general issue, contributory negligence and assumed risk on the part of appellee's wife in traveling over the pathway when there was a nearer, better, and safer way, and in using the pathway when a train was passing, and that appellee's wife was a trespasser, and for that reason was guilty of contributory negligence in walking over said pathway at all.

In support of the verdict of the jury evidence tending to establish the following facts was adduced, to wit: Mrs. Balthrop had gone on an errand to a neighbor's residence in Wolfe City adjacent to appellant's line of railway, which runs approximately east and west. Returning she entered upon a pathway on the south side of the appellant's tracks. This pathway was generally used by the public in going to and from points in the neighborhood, in which use appellant had acquiesced for a number of years. As Mrs. Balthrop entered upon the pathway, appellant's train was leaving its depot at Wolfe City, the depot being about one-fourth of a mile west of the point where she entered upon the pathway, and was observed by her. Before the train reached her, she halted until the engine passed. After the engine passed she resumed her journey along the pathway, she moving west, and the train east. This pathway was about three feet from the end of the ties, and, according to Mrs. Balthrop, she could not have touched the moving train as she pursued her way by extending her arm. When several cars had passed her, and as she was proceeding on her way with a bucket of milk in her hand, she was struck a "blasting lick," as she puts it, on the right side, the one next the train, by some object from the cars. She testified she was making her way carefully without excitement, as she had done many times before, and did not know what struck her before losing consciousness. When found, Mrs. Balthrop was lying across the pathway, her head about two feet or less from the end of the ties, with the right hand up, which would have reached the south rail if it had been extended. Mrs. Balthrop was wearing gloves, and when the glove was removed from her right hand it was found that the hand was badly crushed, the thumb mashed off below the first joint, the bone protruding, the middle finger bone broken, and the edge of the hand from the tip of the little finger to the wrist mashed. The hand was given medical attention, but the treatment was unsuccessful, and it was finally amputated. Mrs. Balthrop, while unable to say definitely what struck her, except an object, was positive that it was not the train. When she was found, the bucket of milk she was carrying was found within four or six feet of her, about two feet from the rail, the contents intact. There was also found about six or eight or ten feet from her, and slightly in advance of her, a piece of 2x6 scantling about three feet long. Appellant attached to its train at Wolfe City two car loads of live stock. The shippers of the stock, in order to insure their safety, crated them in the cars. The manner of crating was to nail a 2x6 scantling across the car fastening it between the slats, the car being a stock car. The scantlings used for such purpose were from two to four feet longer than was necessary, and that much was sawed off of one end of each of the scantlings used and permitted to drop upon the floor of the car. The stock was not completely loaded and crated when the train reached Wolfe City, and in the hurry to get away the pieces of scantling were left in the car, and some of them found in the car on its arrival at Commerce from Wolfe City. It also appeared circumstantially that the stock in the car tore down and dislodged some of the scantlings before the train left Wolfe City. It was the duty of appellant's trainmen to inspect the car before it left Wolfe City and remove the pieces of scantling, which was not done. Appellant's track from the point where Mrs. Balthrop entered upon the pathway to its depot at Wolfe City has high and low places, which caused the cars to rock or seesaw, and produced a motion which tended to, and had on occasions, hurled or thrown substances from loaded cars.

There was a jury trial resulting in a verdict for appellee, followed by like judgment, from which this appeal is taken.

The first assignment of error complains of the refusal of the court below to direct verdict for appellee, and the first and second propositions asserted thereunder are that the evidence shows without dispute that there was a nearer and safer way than the path chosen by appellee's wife, and that in taking the route she did she contributed to her injury, and is hence precluded from recovery. Under the facts shown in the record and the negligence submitted to and found by the jury we conclude that the contention is unsound. There was ample testimony adduced by appellee to sustain the finding of the jury that the public in Wolfe City had habitually and frequently used the path by the side of appellant's tracks as a public highway for a long period of years, and that such use by the public of its right of way was known to, and acquiesced in by, appellant. Such use constituted in law an implied permission for the public to use the path, and constituted them licensees, as distinguished from trespassers, and incidentally, and in consonance with the rule, if appellee's wife's injuries resulted from the dangers inherent to the use of the path while in the exercise of ordinary prudence, she, of course, contributed thereto by entering upon the path. G., C. & S. F. Ry. Co. v. Matthews, 100 Tex. 63, 93 S. W. 1068; City of Greenville v. Pitts, 102 Tex. 2, 107 S. W. 50, 14 L. R. A. (N. S.) 979, 13 Am. St. Rep. 843; G., H. & S. A. Ry. Co. v. Matzdorf, 102 Tex. 42, 112 S. W. 1036, 20 L. R. A. (N. S.) 833, 132 Am. St. Rep. 849. But the only ground upon which the jury was permitted to find against appellant was that the injuries received by Mrs. Balthrop were due to being struck by a piece of scantling being thrown from one of its cars which had been left in the car by the shippers when loading and crating the live stock referred to, and that appellant by the exercise of ordinary care, could have discovered the pieces of scantling in the car. Thus the question at once arises whether the leaving of the pieces of scantling in the car and the failure of appellant's employés to discover same and its subsequent ejection from the car by the motion of the train was one of the inherent or ordinary and...