Texas & N. O. R. Co. v. Bean

• Decision Date: 21 April 1909
• Citation: Texas & N. O. R. Co. v. Bean, 119 S.W. 328, 55 Tex. Civ. App. 341 (Tex. App. 1909)
• Parties: TEXAS & N. O. R. CO. v. BEAN.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

119 S.W. 328

TEXAS & N. O. R. CO. v. BEAN.^†

Court of Civil Appeals of Texas.

April 21, 1909.

Rehearing Denied May 13, 1909.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Action by Forest Bean, by his next friend, against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood and Lane, Jackson, Kelley & Wolters, for appellant. Lovejoy & Parker, for appellee.

PLEASANTS, C. J.

This suit was brought by appellee against the appellant to recover damages for personal injuries. The petition alleges, in substance, that the plaintiff, Forest Bean, a minor about 15 years of age, was injured upon one of the public streets of the city of Houston through the negligence of appellant's servants in the operation of a train of cars on appellant's road, which crosses said street. The only ground of negligence which was submitted to the jury was the mismanagement of the train by blocking the street therewith for an unreasonable length of time in violation of an ordinance of said city, and by then placing the train in motion without blowing the whistle or ringing the engine bell or giving any warning or signal indicating such an intention. The defendant answered by general demurrer and general denial and by a plea of contributory negligence, in which it is charged that plaintiff was guilty of contributory negligence, in that "at a time when defendant's cars were coupled together and attached to a locomotive engine, and the same being operated and about to be moved, the plaintiff entered upon and between two of the said cars, and remained upon and between them and trespassed thereon, without the knowledge or consent of defendant, and in a dangerous position, and remained therein while the said cars were being moved, without taking any reasonable precaution for his safety." In answer to this plea plaintiff, in a supplemental petition, alleged that he was induced to believe that the train would not be put in motion, and that he could safely pass between the cars, by the statement of appellant's watchman at said street crossing made in his presence and hearing to other persons waiting to use said crossing, to the effect that they (the persons there waiting) had better go to the next crossing, as the train would probably remain standing where it then was for 10 or 15 minutes. He further alleged that the defendant was in the habit of blocking said street with its trains for a longer time than 5 minutes, the time permitted by the city ordinance, and that on such occasions it was the general custom for persons desirous of using said crossing to climb between the cars of the train by which the crossing was so blocked, and that from these circumstances defendant might reasonably have anticipated that moving its train without warning of any kind would result in the injury to plaintiff, or in some like injury. The trial in the court below by a jury resulted in a verdict and judgment in favor of plaintiff in the sum of $7,500.

The evidence sustains the following findings of fact: At the time of his injury, the appellee, Forest Bean, was 15 years old. On the morning of the accident he left his mother's home to go to the Grand Central Depot, to take a train to Humble. His way was along Hardy street in said city, which street is crossed by a number of tracks of appellant railroad. When he reached these tracks, there was a long freight train standing on the crossing heading east; the engine of said train being some four or five car lengths east of the crossing. After waiting for more than five minutes for the train to move, and being in a hurry to catch his train to Humble, he jumped up on the drawheads between two of the cars on the crossing, intending to jump down on the other side. Just as he jumped on the drawhead, the train moved back without warning of any kind, and his foot was caught between the drawheads and so mashed and injured that it became necessary to have it amputated. When appellee got to the crossing, there were two wagons and a buggy waiting for the train to move. While appellee was waiting, and just before he attempted to go between the cars, the watchman of appellant at said crossing said to the persons in the wagon and buggy: "If you all want to get by, you just as well go down to the next crossing, as it may be 10 or 15 minutes before this train moves." Acting upon this information the occupants of said vehicles turned around and went to another crossing a block or so distant, and appellee walked up to the train and looked and listened for any signal indicating that the train would be put in motion, and, seeing and hearing nothing to indicate that the train was about to be moved, he made the attempt to cross between the cars as before stated. Neither the whistle nor the bell on the engine was sounded before the train was put in motion, and no warning of any kind was given.

Hardy street is a public thoroughfare of the city of Houston, and there are many people living adjacent thereto and much travel over defendant's tracks at this crossing. The defendant's watchman at said crossing testified that, when the crossing was blocked by trains, it was customary for persons using said street to climb through between the cars just as appellee attempted to do. It was also shown that it was the custom of the operatives of appellant's trains, whenever a train stopped on the crossing, to ring the bell or blow the whistle of the engine before again putting the train in motion. Appellee testified that he knew of this custom, and that on such occasions the bell was usually sounded four or five times or whistle blown several times before the train was moved, and that, if either of these signals had been given on this occasion, he would not have been caught by the movement of the train. There is an ordinance of the city of Houston which provides that: "It shall not be lawful for any railroad company to permit any locomotive, engine or train of cars to remain standing upon any public street crossing within the corporate limits of the city of Houston for a longer period than five minutes." The violation of this ordinance is punishable by a fine. The Hardy street crossing is in appellant's switchyards and, as before stated, there are a number of tracks at this point. These tracks are being almost constantly used and engine bells and whistles are sounding there a great deal of the time. Another ordinance of the city of Houston provides that: "It shall be the duty of every engineer or person in charge of an engine to cause the engine bell to be rung continuously, whilst the cars are in motion and every person who shall fail so to do shall be deemed guilty of an offense, and shall be fined, on conviction before the recorder, in any sum not less than twenty-five (25) dollars, nor more than one hundred (100) dollars."

Appellee has the intelligence and discretion of the average boy of his age and was possessed of that degree of intelligence at the time he got between the cars and was injured as stated. The appellee was born with a club-foot. This deformity was described as a foot with an ankle, heel, and two toes; the other parts of an ordinary foot being lacking. The evidence shows that this deformity interfered very little, if any, with his activity, but he walked with a slight limp. This was the foot that was caught between the drawheads and injured so that it had to be amputated.

The first and second assignments of error complain of the ruling of the trial court in admitting in evidence, over the objection of the defendant, the ordinance of the city of Houston forbidding the blocking of street crossings by railway trains for more than five minutes and providing a penalty therefor. The objections presented to the admission of this ordinance were: (1) Because it was irrelevant to any issue in the case; (2) because it was not competent to establish by such ordinance any negligence upon the part of the defendant; (3) because it was shown by the evidence of the plaintiff and his witnesses that the violation of this ordinance, if it occurred, could not have been the proximate cause of plaintiff's injuries in this case. There was no error in the ruling complained of by these assignments. The ground of negligence alleged in the petition and submitted to the jury was the mismanagement of the...