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

• Decision Date: 30 January 1909
• Citation: 116 S.W. 139
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. MURDOCK.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

116 S.W. 139

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

Court of Civil Appeals of Texas.

January 30, 1909.

Rehearing Denied February 20, 1909.

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

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

E. B. Perkins, D. Upthegrove, and Templeton, Crosby & Dinsmore, for appellant. J. S. Sherrill and B. Q. Evans, for appellee.

TALBOT, J.

T. W. Murdock brought this suit against the St. Louis Southwestern Railway Company of Texas to recover damages for injuries resulting to his wife from fright occasioned her by the negligence of the railway company's servants in the operation of a train at a street crossing in the city of Greenville. The defendant pleaded the general issue and contributory negligence. A jury trial resulted in a verdict and judgment in favor of the plaintiff for $1,000, and the defendant appealed.

The evidence was sufficient to establish the following facts: On the evening of November 8, 1906, while the plaintiff was driving in a one-horse hack or wagon along Lee street, in the city of Greenville, with his wife and child, he approached the point where the defendant's railroad crosses said street. There was a freight train standing across the street, and plaintiff drove up within about 10 feet of it, and stopped. After waiting about 20 minutes for the train to be removed from the crossing, he called to a brakeman on the train to open up the crossing so he could pass over. The brakeman then uncoupled the cars, and signaled the engineer, and that portion of the train immediately on and north of the crossing was moved forward about 10 feet, leaving a sufficient opening for plaintiff to drive over the crossing. When this was done, the brakeman told plaintiff to "come ahead," and plaintiff, with his wife and child in the wagon, drove on the crossing. About the time the horse and vehicle got on the railroad track, the cars attached to the engine, and which had been moved forward to enable plaintiff to pass, were negligently backed toward him, and he whipped up his horse and got over the crossing just before the two sections of the train came together; he and his wife and child narrowly escaping being caught and crushed between the cars. Seeing their danger, Mrs. Murdock became very much frightened, and, turning suddenly and quickly in her seat, caught hold of her husband, and said, "we are all going to be killed." Mrs. Murdock was about five months advanced in pregnancy, and, almost immediately after receiving the fright, experienced severe pains in her back, and when her home was reached, which was distant from the crossing only about 400 yards, she was unable to get out of the wagon without the assistance of her husband, and was confined to her bed about one month. During this time she suffered with pain in her back, head, and other portions of her body, and was threatened with a miscarriage. So serious was the threatened miscarriage that it was only averted by the medical treatment received from her physician and absolute quiet. The birth of the child, however, was normal, though Mrs. Murdock, on account of the prostration, was compelled to remain in bed longer than is usual in such cases. Her physician testified: "I pronounce her trouble to be neurasthenia, a disease which is produced by shock to the nervous system. * * * The fright would upset her sympathetic nerves. I would attribute the upsetting of the nervous system to the fright. It is very common for this nervous condition to be produced by a traumatic blow or by actual fright." From the time of the fright up to the trial of this case Mrs. Murdock has been very nervous and suffered more or less pain in the back as a result of the fright, and the probabilities are that she will continue to so suffer. We further find that the fright occasioned Mrs. Murdock and the injuries resulting therefrom may reasonably have been anticipated by defendant's servants in charge of the train as the natural and probable consequences of their negligent act in backing the train while plaintiff was on the crossing, and that the plaintiff was not guilty of contributory negligence.

The propositions contended for by appellant under its several assignments of error may be stated as follows: (1) That the evidence shows that the defendant's servants in charge of the train in question did not, and could not under the circumstances, foresee any of the injuries alleged and proved by plaintiff as a natural and probable consequence of their alleged negligence. Therefore the trial court erred in overruling defendant's motion for a new trial based on that...