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

• Court: Texas Court of Appeals
• Writing for the Court: Talbot
• Citation: St. Louis Southwestern Ry. Co. of Texas v. Anderson, 206 S.W. 696 (Tex. App. 1918)
• Decision Date: 26 October 1918
• Docket Number: (No. 8010.)
• Petition History: writ ref'd
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. ANDERSON et al.

206 S.W. 696

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. ANDERSON et al.

(No. 8010.)

Court of Civil Appeals of Texas. Dallas.

October 26, 1918.

Rehearing Denied November 30, 1918.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Suit by Mrs. John Anderson, on her own behalf and as next friend of Floyd Anderson, a minor, against the St. Louis Southwestern Railway Company of Texas, to recover for the wrongful death of John Anderson. Judgment for plaintiffs, and defendant appeals. Affirmed.

E. B. Perkins, of Dallas, and Scott & Ross, of Waco, for appellant.

Shurtleff & Cummings, of Waco, for appellees.

TALBOT, J.

The appellee Mrs. John Anderson, the surviving wife of John Anderson, deceased, in her own behalf and as next friend for Floyd Anderson, the minor child of herself and the said John Anderson, brought this suit against the appellant to recover damages sustained by them on account of the death of the said John Anderson occasioned by the acts and negligence of the servants of appellant in propelling the locomotive attached to one of its trains against the hack of the said John Anderson at Hillsboro, Tex., causing the said Anderson to be thrown from the seat of said hack to the ground, alleging that the injuries resulting from said acts of appellant's servants and fall caused the death of the said John Anderson; that the appellant's servants in charge of said locomotive and train discovered the peril of the said John Anderson in time to have avoided striking his hack by the use of the means at their command, but failed to use the care required of them by law to do so. The defendant pleaded a general denial, and specially that the deceased, John Anderson, was engaged in driving a hack, and habitually met the incoming passenger train in the city of Hillsboro, where the accident is alleged to have taken place, and that he would and did leave his hack standing with the rear of the same near the defendant's railway track, by and over which said locomotive and passenger coaches were moved in arriving at the depot; that the passenger coaches would pass within a few inches of the rear of his hack; that on the occasion of the alleged injuries, immediately preceding the arrival of the defendant's passenger train, and as it approached the passenger depot, the said John Anderson drove his hack and team to defendant's depot, turned his team so they would face east, with the rear of his hack within a few inches of the east rail of defendant's railway track, over which its locomotive and passenger train complained of by plaintiff were moving at said time, stopping at the usual and accustomed place where deceased was in the habit of stopping; that as the train in question approached the depot and the deceased's hack, the deceased at the time being upon the driver's seat towards the front end of the hack, with the lines in his hands, managing the horses hitched to the hack, said horses became frightened at the approach of an automobile, and suddenly caused the hack to move backwards, so that the rear wheels thereof came in contact with the "rear stirrup and east end of the wooden pilot beam on defendant's engine," which contact was so sudden that it was impossible for the engineer operating the locomotive to stop the same before striking and smashing the rear wheel of the hack; that the deceased either jumped off said hack or fell therefrom to the ground; that it was dark at the time of the accident; that the engineer was in the cab on the right-hand side of the locomotive, and the deceased was on the left-hand side of the railroad track; that, on account of the length and size of the boiler of the locomotive, the engineer could not see what was transpiring on the east side of the track, and did not see deceased's hack or team after deceased stopped at his usual and customary place, "and where, had said hack remained, it would have been entirely safe from any injury by defendant's locomotive or train." Appellant further alleged that the deceased, John Anderson, was guilty of contributory negligence in leaving his hack, with the team hitched to it, so close to appellant's railroad track and passing trains, with full knowledge of the disposition of said horses and the probability of their becoming frightened at the approach of automobiles or vehicles of any kind; that appellant's employés relied upon the said Anderson to place his hack at a sufficiently safe distance from its track to permit the passage of its locomotive, and to take such precautions as were necessary to prevent his team from backing the hack so as to come in contact with its locomotives; that, as the locomotive and train causing the alleged injury to the deceased approached the station at Hillsboro, the engineer was at his post of duty on the right-hand side of the locomotive, "which was the opposite from the location of said hack, and looking forward to see that the track in front of his locomotive was clear, as shown by his headlight," which threw a light immediately forward and directly on the track in front of the locomotive, and had no knowledge whatsoever of the movement of the deceased's hack or team, and no knowledge that the hack was being backed until the accident occurred, at which time he immediately applied his air and stopped the engine in a few feet.

The case was submitted upon special issues, and the jury found that the deceased, John Anderson, was in a position of imminent peril before defendant's train reached the point where his hack was situated; that such perilous position was known to the servants of defendant in charge of the locomotive that struck the hack; that said servants knew of the imminent peril of the deceased in time to have stopped said locomotive and train, by the use of the means at their command, with safety to themselves and persons on the train, and avoided injury to the deceased. The jury further found, in answer to questions propounded by the court, that the failure of appellant's servants to stop the locomotive and train before striking the deceased's hack was negligence, and that such negligence was the proximate cause of the death of the deceased, Anderson; that the collision or striking of the deceased's hack was not an unavoidable accident; that the deceased, John Anderson, could not, after he was in imminent peril, have extricated himself from such peril; that $4,500, if paid in cash now, would fairly compensate Mrs. John Anderson for the pecuniary loss sustained by her on account of the death of her husband, and that $3,000, if so paid, would compensate Floyd Anderson for the pecuniary loss sustained by him on account of the death of his father, until he arrived at the age of 21 years. Upon the foregoing findings judgment was rendered in favor of appellees, respectively, for sums stated, and, appellant's motion for a rehearing having been overruled, it appealed.

Appellant presents, first, what it terms "Appellant's Assignment of Fundamental Error." By this assignment it is asserted, in substance, that the district court was without jurisdiction to hear and determine this cause, and hence this court has not jurisdiction to entertain the appeal, because the father of the deceased, who he left surviving him in addition to the appellees herein, was not a party to the suit, nor was the suit brought for his use and benefit. The alleged fact that the deceased left surviving him his father does not appear in any way in the record sent to this court. The only way appellant seeks to establish and show such a fact is by ex parte affidavits taken and filed for the first time in this court long after the appeal was perfected and the transcript sent here. A fundamental error is one apparent upon the face of the record. The affidavits referred to constitute no part of the record in this cause, and the fact, if it be a fact, that the deceased, John Anderson, left his father surviving him not appearing from the record, the error charged and sought here to be assigned is not fundamental. The matter called to the attention of the court in the assignment is not jurisdictional, but a nonjoinder of parties, and the affidavits filed here to show the want of a necessary party to the suit cannot be considered for that purpose or for any other purpose. Had the evidence in the trial of the case developed the fact that the deceased had a father, "the proceedings should have been arrested until he was made a party, or the petition so amended that the suit would proceed for his use as well as that of the other beneficiaries." Railway Co. v. Culberson, 68 Tex. 664, 5 S. W. 820. It was not, however, disclosed by the evidence introduced in the trial court that the deceased had a father. Nor did appellant, by plea in abatement or by any form of objection whatever, complain of the nonjoinder of the father, and suggest or urge that the suit be arrested until he was made a party or included by proper averments in the benefit of the action. It not being apparent of record that the deceased left his father surviving him, appellant is in no position to urge in this court his nonjoinder as a party to the suit, and the assignment under consideration will be overruled. Illustrative of the correctness of this ruling are the following cases, which hold that if the nonjoinder of parties is not apparent of record the question cannot be raised by demurrer: March v. Walker, 48 Tex. 372; Cotton Press Co. v. Bradley, 52 Tex. 587.

The first assignment of error touching the merits of the case is, in substance, that the verdict of the jury is contrary to the law and the evidence, in that there was no evidence that the death of the deceased, John Anderson, was caused by the appellant, since there was no evidence that his death resulted from the fall complained of in appellees' petition. We do not concur in this view of the evidence. We think the evidence contained in the record sufficient to show that the death of John Anderson was...