St. Louis, A. & T. Ry. Co. v. Crosnoe

• Decision Date: 23 November 1888
• Parties: ST. LOUIS, A. & T. RY. Co. <I>v.</I> CROSNOE.
• Court: Texas Supreme Court

10 S.W. 342

ST. LOUIS, A. & T. RY. Co.

v. CROSNOE.

Supreme Court of Texas.

November 23, 1888.

Appeal from district court, Smith county; FELIX J. McCORD, Judge.

Action by H. C. Crosnoe against the St. Louis, Arkansas & Texas Railway Company, to recover damages for personal injuries. Defendant appeals.

N. Webb Finley, for appellant. John M. Duncan, for appellee.

WALKER, J.

This is an appeal from a judgment in favor of Crosnoe for personal injuries inflicted upon him May 23, 1887, at Corsicana, Tex., by a moving car on the railway track of defendant running upon the plaintiff while he was crossing the track at a public highway. The defendant answered that the "defendant company had a yard upon which was constructed sidings and switches for the exclusive purpose of switching cars from the main track, changing cars, and making up trains; that this yard is located at a point where its sidings and switches do not intersect or cross any street, alley, or public way of travel, and that no person has a legal right to enter upon or cross over defendant's railroad at such point, so exclusively appropriated by it for switching purposes; that it is necessary and proper for the conduct of its business at Corsicana for it to have and maintain such a yard, etc.; that upon one of its sidings or switches in said private yard some flat cars had been placed, and, while an engine was being used to effect a coupling, * * * in the usual and ordinary manner, at usual rate of speed, one of the cars being moved was forced against said flat cars, moving them from their position some four or five feet, thereby passing upon the plaintiff; * * * that plaintiff was a trespasser, having entered upon the track at a point where he had no legal right to do so, and by his own wrong, without fault of the defendant company, brought upon himself the injury," etc. By supplemental petition it is alleged "that there were cars standing upon the side tracks of defendant at or near the scene of the accident, and also a coal chute or bin, constructed between the said side tracks, — all of which tended to and did obstruct plaintiff's view, so that he could not see the moving cars which were run against those which struck plaintiff until they were almost upon him that the place where the accident occurred was in the midst of the city of Corsicana, and at a place in defendant's track commonly used by footmen; that same had been for years and is now notoriously used by the public as a crossing for foot-passengers going from East Corsicana to West Corsicana, and returning; that said defendant at all times, as well as its agents and servants, operating trains in Corsicana, well knew of such open, notorious, and constant use of said place as a crossing by the public, and prior to said accident had made no objection thereto."

There is no contest over the fact and the extent of the injury, or as to the manner the same was caused. There was a contest as to the extent and publicity of the use of the place as a way by footmen in passing east and west between the two parts of the city of Corsicana, and some dispute as to the care taken by plaintiff in the act of attempting to cross the track. The counsel for defendant, by carefully prepared instructions requested, but which were refused by the court, sought to have the jury charged that the plaintiff, being in the yard and upon the track, not upon a street or public crossing, was a trespasser, and that under such circumstances he could not recover, unless the employes had seen his danger, and negligently permitted him to be injured, or had neglected to use due efforts for his safety after seeing his danger. The court charged the jury, among other things: "A person who goes upon a railroad track other than at a public street or crossing, or such private way as is commonly used by the public with the knowledge and permission of the company operating the track, is a trespasser, and the railroad company has a right to expect that the person will leave the track, and would not be held liable unless, after seeing the impending danger, they took no precautions to prevent injury; and, if they took precautions after seeing the danger, the railroad company would not be liable. (8) So that * * * if you find from the testimony that plaintiff, Crosnoe, went upon the track of defendant, at a place other than at a public crossing, or private way that was commonly used by the public, and the company's agents knew that fact, and permitted it, he would be a trespasser, and, though the company may have acted negligently, yet the plaintiff cannot recover unless, after seeing his peril, the agents and employes of defendant failed to use precautions to prevent the injury. If they did see his danger, and did not try to prevent the injury, then the plaintiff's negligence would not be the cause of the injuries, and you will find for plaintiff. Yet, though you may find that plaintiff was a trespasser, still, if the proof shows that defendant's agents knew that people were in the habit of crossing the track at the place where Crosnoe was injured, if you further find that the defendant's agents and employes, knowing that people were in the habit of crossing the track at that point, in a reckless and wanton manner propelled the cars in such a way as to show a total indifference to the consequences of such act, and that the plaintiff was injured by such wantonness, then the defendant company would be liable. (9) Plaintiff cannot recover if he did not use his senses to ascertain the approach of a train; and if he went upon the track without acquainting himself of the approaching train, and was injured thereby, he cannot recover, unless, after he got upon the track, the agents of defendant saw him in time to try to use the means to avoid the danger, and failed to do so. If, however, the proof shows that Crosnoe went to a place that was a private way over defendant's road, commonly used by persons on foot, and that this fact was known by defendant's agents and employes in charge of the trains; and if the proof further shows that, before he went upon the track, he used the utmost care to find out if a train was approaching, and by the exercise of this care he did not know of an approaching train, and started across the track; and the defendant's agents and employes, knowing that this was a private way, did not use ordinary care, before explained, to prevent injury, and negligently ran their cars over plaintiff; and the proof further shows that plaintiff used that degree of care required of him, and was not negligent in going upon the track, and he was injured thereby, — the defendant company would be liable. * * * If the place where plaintiff attempted to cross the track was not a private way, commonly used, the plaintiff, in going upon the track, would be a...