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

• Decision Date: 28 January 1915
• Docket Number: (No. 1377.)
• Citation: 173 S.W. 909
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WATTS et al.
• Court: Texas Court of Appeals

173 S.W. 909

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

(No. 1377.)

Court of Civil Appeals of Texas. Texarkana.

January 28, 1915.

Rehearing Denied February 25, 1915.

Appeal from District Court, Bowie County; H. F. O'Neal, Judge.

Action by Mrs. Nannie Watts and others against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiffs, defendant appeals. Affirmed.

Glass, Estes, King & Burford, of Texarkana, for appellant. Smelser & Vaughan and Mahaffey, Thomas & Hughes, all of Texarkana, and R. M. Hubbard, of New Boston, for appellees.

HODGES, J.

On the night of July 7, 1912, John C. Watts, the husband of the appellee Mrs. Nannie Watts, and the father of the other appellees, was killed in the yards of the appellant at Texarkana, Tex., under the following circumstances: His daughter desired to go to Palestine, Tex., and he accompanied her to the Union Station at Texarkana to assist her in taking passage on the south-bound Texas & Pacific train due to leave some time after 1 o'clock in the early morning. He boarded this train with his daughter for the purpose of securing for her a berth in a sleeping car, but before he had concluded his arrangements with the Pullman conductor the train began to leave the station. The Pullman conductor testified:

"When I first learned what Mr. Watts intended to do the train was then moving. I immediately started to the vestibule at the front end of the car. Mr. Watts followed me on the platform. The porter had closed the vestibule door. * * * I told Mr. Watts to wait and I would go and get the train conductor and stop the train for him. I last saw Mr. Watts standing on the platform of the second car, where I told him to wait until I could get the train conductor. * * * I went for the train conductor as hurriedly as I could, * * * and after returning with the conductor where I had left Mr. Watts he was gone, and I did not see him any more. The conductor and I looked through the cars for him, and could not find him. On returning with the conductor, I found the vestibule door open where Mr. Watts had been standing."

The Texas & Pacific train, in passing out from the Union Depot, moved in a southwesterly direction, and gradually turned still farther toward the south, crossing the main line and one or more switch tracks of the appellant before leaving the railway yards. Shortly after this train had left, a switch engine belonging to the appellant, which had been standing east of this crossing of the railroads, moved west some distance, passing over the Texas & Pacific track. It was then switched onto another one of the appellant's tracks a few feet further south, and started toward the east again. When within a few feet of the Texas & Pacific track the body of a man, afterwards identified as that of John C. Watts, was discovered on the appellant's track about six feet in front of the end of the tender of this switch engine. This switch engine was backing, and across the rear end of the tender was a running board, on which several of the appellant's employés were standing at the time, but it seems that none of them discovered Watts in time to avoid a collision. The engine passed over his body, and he expired a few seconds later. E. M. Holliday, one of those employés, thus describes what occurred:

"I was standing on the footboard of engine No. 90 at the time it was approaching the place or the track where John C. Watts was lying just before he was struck by said engine No. 90. When I first saw him he was lying on the track, apparently raised up on his elbows. I cannot say whether his face was up or down. * * * He was between the rails when I first saw him. * * * When I first saw the deceased I was about six feet from him. I called to him when I first saw him, and said, `Get out of the way!' He didn't say anything, but turned and looked at me. He was lying in between the rails, propped up on his elbows. The engine was backing up at the time. There were no headlights there except the headlight. The place where deceased was killed was very dark, except the light from the lanterns of the crew. Just a short distance — something like 20 feet from the place where the accident occurred — we had stopped the engine and picked up J. A. Wood, switchman, and Bert Heddon, switchman. There was no alarm. The yard was quiet, and no one was making any alarm or noise."

Another switchman testified that about the time the collision occurred he heard some one in that direction cry out as if in pain. A. L. Scott, a witness for the defendant, testified that at the time this injury occurred it was his business to let trains in and out of the yard at Texarkana to place engines on and take them off, and arrange switches for trains to leave town and come into town on. He thus testified as to what he observed that night:

"I gave the high-ball signal that night, and the train passed me. As the train passed me I saw an elderly gentlemen standing on the bottom steps of the International & Great Northern coach, sometimes termed a `chair car' by the employés, but I rather think it was an International & Great Northern coach. It was the third car from the rear end of the train. This gentleman was standing with his left hand on the grabiron, facing towards the engine. He had on glasses. * * * He was wearing a white hat. The two cars behind the car that he was on were International & Great Northern Pullman cars — sleepers, I term them — Pullman sleepers. He was on the lower steps of the car, with his left hand on the grabiron, facing the front of the engine, the way the train was going. I judge that the train was moving between 8 and 10 miles an hour. I saw him again on the train as the train was passing me. After the train passed me he made an effort to turn, as though a man in the act of getting off of the train. He turned his back toward me that way, as though making an effort to get off the train, in the act of swinging, like an ordinary man would get off of a train. * * * I then walked toward the Cotton Belt tracks, over the track that comes from the Union Station, to see further around the curve, and the last I could see of him was his hatbrim as he rounded the curve. He was then still on the train. * * * By that time their speed would have increased, I believe, to about 12 or 14 miles an hour in that distance. I did not have occasion to see him any more after he rounded the curve."

Dr. E. M. Watts, a son of the deceased, testified as follows:

"When I first saw the body it was at the East Undertaking Company. I did not make an examination of the body. I examined the skull and his hands. When I got to the undertaking establishment he was there covered up all except his hands and the upper part of his body. I did not examine the lower extremeties, but did examine his head and his hands, and his hands showed that he had been pushed around in the cinders. The skin was slightly torn. It was just an abrasion, you understand. The skin was torn, but there was not any cut or anything like that, and his hands were dirty. He had a gash across his forehead, probably six or seven inches long. It seemed to be a cut when I first examined it. I did not find any fracture, and am sure there was none. I looked for that particularly. The wound on the head was what would be called a scalp wound. It was not such a wound as, in my opinion as a physician, would ordinarily cause death. It would have a tendency to daze a man temporarily; it would stun him."

This suit is by the surviving wife and children of John C. Watts to recover damages occasioned by his death, and this appeal is from a judgment in their favor for the sum of $10,000. The petition charged negligence on the part of the appellant's employés in failing to keep a proper lookout to discover the presence of John C. Watts upon the track, and in failing to exercise proper care to stop the engine after they discovered his presence upon the track and in a place of danger. The latter ground, however, was abandoned, and the issue of negligence based upon the failure to keep a proper lookout to discover the presence of the deceased upon the track was the only one submitted as a basis of recovery.

There was testimony sufficient to justify a finding by the jury that the appellant's roadbed and track at the place where the accident occurred had been commonly used as a footpath, both in the daytime and at night, for a number of years, under circumstances which were reasonably calculated to charge the employés with a knowledge of such use. The court gave to the jury the following as a portion of his main charge:

(1) "The court instructs you that the first question in this case for you to determine is: Was the death of the said John C. Watts caused by his being struck and run over by a switch engine of the defendant's? Now, if you believe from the evidence that at the time John C. Watts was struck and run over by a switch engine of the defendant he was already dead, or that he had previously received injuries in getting off a Texas & Pacific train which would have caused his death, then, if you so find, you will return a verdict for the defendant, without considering any other issues in this case."

The main issue was thus...