Stinnett v. Gulf. C. & S. F. Ry. Co., 9519.

• Court: Texas Court of Appeals
• Writing for the Court: Graves
• Citation: Stinnett v. Gulf. C. & S. F. Ry. Co., 38 S.W.2d 615 (Tex. App. 1931)
• Decision Date: 26 February 1931
• Docket Number: No. 9519.,9519.
• Parties: STINNETT v. GULF, C. & S. F. RY. CO.

38 S.W.2d 615

STINNETT v. GULF, C. & S. F. RY. CO.

No. 9519.

Court of Civil Appeals of Texas. Galveston.

February 26, 1931.

Rehearing Denied March 19, 1931.

Appeal from District Court, Matagorda County; M. S. Munson, Judge.

Suit by Mrs. M. C. Stinnett against the Gulf, Colorado & Santa Fé Railway Company. From a judgment on an instructed verdict for defendant, plaintiff appeals.

Reversed and remanded.

W. C. Carpenter, of Bay City, and Winbourn Pearce, of Temple, for appellant.

Styles & Erickson, of Bay City, and Terry, Cavin & Mills, of Galveston, for appellee.

GRAVES, J.

This general statement of the nature and result of the suit, deemed to be reasonably accurate in all material features as such, is taken from appellant's brief, after revision of the verbiage in a few unimportant particulars:

"Mrs. M. C. Stinnett, a widow, brought this suit against the Gulf, Colorado & Santa Fe Railway Company for damages resulting to her by reason of the death of her adult son, Bob Stinnett, alleging that his death was caused by Bob Stinnett's being struck by one of defendant's engines and trains, on or near the track of the defendant, at a public crossing constituted by an intersection of defendant's railroad and a public highway, just north of Bay City, Matagorda County, Texas.

"The plaintiff also alleged that, on the date in question, the deceased was on the public crossing, and was on or very near the track of the defendant, at such public crossing, and that he was in an intoxicated and helpless condition at the time he was so struck by defendant's engine and train; the plaintiff further alleging that the deceased was struck by a train going south, soon after midnight, and that for a long distance north of the crossing the track of the Railway Company was straight and level, and there was nothing to prevent the engineer and fireman on appellee's train from seeing the deceased for such long distance; the appellant also alleging that the death of the deceased was directly and proximately caused by the negligence and carelessness of the appellee, among other things, in failing and refusing to stop its train, and in failing and refusing to use all the means at hand to avoid injuring the deceased after having discovered his perilous position, and, further, in this connection, that the train was being run at a very moderate speed and could have been stopped within a few hundred feet, and that the perilous position of the deceased was discovered by both of the employees of the appellee, who were on the engine, in time to have avoided striking and killing the deceased, if such employees had used ordinary care in the use of all the means at hand, consistent with the safety of the train and those on same, and further alleged that the engineer and fireman, after discovering the perilous position of the deceased, failed to use all the means at hand, consistent with the safety of the train and those on same, to avoid striking and killing him; and the appellant further alleged that the deceased was an adult, ____ years of age, and that she was living with and dependent upon him for support, and that deceased would have been of great aid and benefit to her, and would have contributed to her support during the remainder of her life, and claimed and alleged damages in the sum of Twenty Thousand ($20,000.00) Dollars.

"The appellee answered by general denial and general and special exceptions, and, further, answered that the death of the deceased was proximately caused by the negligence and contributory negligence of the deceased, in various particulars.

"At the conclusion of the evidence of the appellant, the appellee filed a motion for an instructed verdict, and, over appellant's protest, the court granted the motion and gave the jury instruction to find a verdict for the appellee."

In due course verdict and judgment in accordance with the peremptory instruction followed, and this appeal therefrom has been regularly prosecuted.

The sole question the cause presents is: Did the evidence raise an issue of fact over whether or not appellant's son was killed at the alleged crossing by one of the appellee's south-bound trains as the proximate result of a negligent failure on the part of the operatives thereof to use the means at hand to avoid injuring him, after having discovered him there in a position of peril?

If it did not, the judgment should be affirmed; otherwise a reversal must be ordered.

Under the now well-settled rule laid down by our Supreme Court in Wininger v. Ft. Worth & D. C. Railway Co., 105 Tex. 56, 143 S. W. 1150, that inquiry must be answered in the affirmative "if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff." See, also, Texas & P. R. Co. v. Cox, 145 U. S. 593, 12 S. Ct. 905, 36 L. Ed. 829; Brown v. Griffin, 71 Tex. 654, 9 S. W. 546; Texas & P. R. Co. v. Ball, 96 Tex. 622, 75 S. W. 4; International & G. N. Ry. Co. v. Tinon (Tex. Civ. App.) 117 S. W. 936.

It is true there is no direct testimony, either as to how the son met his death, or as to any negligent dereliction of the train operatives that may have proximately caused it, but that is not necessary; both features being susceptible of proof by circumstances alone. When those so abundantly present here are looked to and appraised in the light of the quoted test, it seems clear to this court that a jury might reasonably have found, not only that he was killed by the appellee's south-bound train at the particular crossing substantially as charged, but also that its operatives, the engineer and fireman, did see him in a perilous position either on, or so near the track as to amount to the same thing, in time to have stopped the train before it struck him.

It was indisputably shown that about daylight on July 16th of 1929 the dead body of Bob Stinnett, then cold and stiff, as if life had been extinct for possibly if not probably several hours, was found on the south part of that railroad crossing right by the track itself, his head being within four or six inches of the rail, the skull and face all crushed and caved in to the extent of one-half of the whole by wounds apparently caused by a driving force such as a heavy engine might inflict, the left arm extending full...