St. Louis Southwestern Ry. Co. v. Bowles

• Decision Date: 07 February 1903
• Citation: 72 S.W. 451
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. BOWLES et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

72 S.W. 451

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. BOWLES et al.^*

Court of Civil Appeals of Texas.

February 7, 1903.

Appeal from district court, Bowie county; J. M. Talbot, Judge.

Action by George R. Bowles and others against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiffs, and defendant appeals. Affirmed.

E. B. Perkins and Glass, Estes & King, for appellant. P. A. Turner, W. H. Arnold, and B. J. Stuart, for appellees.

TEMPLETON, J.

On February 15, 1902, H. W. Allen was struck and killed by the cars of the St. Louis Southwestern Railway Company of Texas. He left four married daughters, who, in conjunction with their husbands, brought this suit against the company to recover the damages sustained by them on account of the death of their father. A jury awarded them the sum of $5,000. The accident occurred while appellant was crossing Front street, in the city of Texarkana. The street runs east and west. The railroad tracks also run east and west, and are laid in the street. Appellant's depot is situated north, and the Union Depot south, of the tracks, about 60 feet intervening between the two depots. The west end of the Union Depot is directly opposite appellant's depot, but the Union Depot extends much farther east than appellant's depot. There is a plank walk, 10 or 12 feet wide, extending across the street from the west end of the Union Depot to appellant's depot. The walk was constructed originally for convenience of the railway companies in transferring baggage, mail, and express from one depot to the other, but it had been long and continuously used by the public generally as a footway, with the knowledge and acquiescence of the companies. The street was one of the public streets of the city. The plank walk crossed three railroad tracks. The first track, which was located just south of appellant's depot, was appellant's main track. The second, or middle, track was appellant's passing track. A short distance east of the depot there was a switch, where the two tracks came together. There was another switch 550 feet west of the plank walk, where the tracks came together again. The view in both directions was not obstructed by any change in the course or by any structure. The third track, which was located just north of the Union Depot, was a track of the Texas & Pacific Railway Company. The main tracks of that company and of the Iron Mountain Company are located south of the Union Depot. The depot of the Kansas City Southern Railway Company is located on the north side of Front street, north of and opposite appellant's depot. Allen lived at Ashdown, Ark., a station on the Kansas City Southern Railway about 20 miles north of Texarkana. One of his daughters, Mrs. Spry, lived at Marshall, Tex., a station on the Texas & Pacific Railway south of Texarkana. She desired to go to her father, and notified him to meet her at Texarkana. He went there for that purpose, and, shortly before the Texas & Pacific train on which he expected his daughter was due to arrive, went to the Union Depot. He stayed in the sitting room at the east end of the depot a few minutes, and then went out at the south door of said room. He was next seen, so far as the evidence shows, on the plank walk on Front street. He was traveling north, and had about reached appellant's main track. As he was crossing the track, some box cars, which were standing just west of the walk, were bumped into by a train of freight cars coming up the track from the west. The collision impelled the cars across the walk. The cars struck Allen, ran over him, and killed him. The cars which struck Allen had been placed on the main track a few minutes before the accident occurred. There were four of them, and they were loaded with merchandise. They were stationed just west of the plank walk, and scarcely far enough to clear the crossing. There was no engine attached to them. The crew which was handling them, after placing them in the position stated, had pulled their engine back on the passing track and west down said track past the switch west of the depot. There were 13 cars attached to the engine, 10 of which were loaded. The engine was at the west end of the train. After pulling past the said switch, the train was backed in on the main track and against the four cars which had been left on the said track. The collision caused the accident. When the car struck Allen, the engine was about 625 feet west of the plank walk. The cars were being moved so as to get them in a proper position for unloading.

The evidence is sufficient to warrant the conclusion that the operatives of the train were guilty of negligence in bumping into the standing cars, and forcing the same suddenly across the walk, without having taken the proper precautions to ascertain whether the way was clear. And we think it is sufficient to justify the finding of the jury that Allen was not guilty of contributory negligence. It is true that his purpose in going across the street was not shown. He does not appear to have had any business at appellant's depot, but he may have been going over to the Kansas City Southern Depot to see about tickets, or something connected with his trip home. At any rate, no matter what his purpose was, he was on a public street, and on a much-used walk. He was where he had a right to be, and was neither a trespasser nor a licensee. He must have seen the car he attempted to pass; but, as there was no engine attached, he may reasonably have concluded that he could cross the track in safety. He was justified in assuming that the cars would not be suddenly backed over the crossing without full warning being given. He may not have observed the cars backing up, or, if he did, may not have had reason to suppose that they would be hurled against the standing cars in the manner they were. There was evidence tending to show that the moving cars were making little noise, and that they were backed into and against the standing cars with great force. If the bell was ringing—about which there is a conflict in the evidence— the engine was at such distance from the walk that Allen may not have heard the same. There was no employé of the company at the crossing to warn him that the coupling was about to be made. The question of negligence or not on the part of Allen was properly left to the decision of the jury, and their finding is conclusive. Railway Co. v. Lee, 70 Tex. 500, 7 S. W. 857; Railway Co. v. Boozer, 70 Tex. 536, 8 S. W. 119, 8 Am. St. Rep. 615; Railway Co. v. Crosnoe, 72 Tex. 83, 10 S. W. 342; Railway Co. v. Lowry, 61 Tex. 154; Railway Co. v. Dyer, 76 Tex. 160, 13 S. W. 377; Railway Co. v. Graves, 59 Tex. 332; Railway Co. v. Wilson, 60 Tex. 144. Appellant's assignments of error which urge the contention that the evidence fails to establish liability are overruled.

One paragraph of the court's charge to the jury reads thus: "If you believe and find from the evidence that on the 15th day of February, A. D. 1902, defendant had some box cars standing on the north track, or track nearest its said depot, and west of said plank crossing, without any engine attached to them, and that while H. W. Allen was walking along said plank crossing, going north from the west end of the said Union Depot to the depot of defendant, and that just as he got about the middle of the railroad track on which said box cars were standing the servants of the defendant in charge of one of its engines attached to other freight cars, west of said crossing backed said freight cars east on the track where said box cars were standing, and struck said box cars with great force, and suddenly moved said box cars east against the said H. W. Allen, and knocked him down, and passed over him, and killed him, as alleged in plaintiff's petition; and if you further find from the evidence that the servants of defendant in charge of said engine and cars failed to exercise ordinary care to observe the said H. W. Allen in attempting to pass over said railroad track along said plank crossing, and to avoid striking and injuring him; and if you find that the placing and leaving of said box cars on the railroad track without an engine attached to them, and the striking of them with the other cars and engine as alleged, if so struck, and the failure, if any, on the part of the defendant's said servants to use ordinary care to observe said Allen in attempting to cross said railroad track, was negligence, and that, but for such negligence, if any, the said H. W. Allen would not have been struck by the said cars and killed; and if you further find from the evidence that plaintiffs have suffered any pecuniary damages by reason of the said Allen's death, then you will return a verdict for plaintiffs against the defendant for such sum, as actual damages, as the evidence may show them entitled to under the instructions hereinafter given you." Complaint is made of...