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

• Decision Date: 19 May 1914
• Docket Number: (No. 6605.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 168 S.W. 428
• Parties: TEXAS & N. O. R. CO. v. CUNNINGHAM et al.
• Court: Texas Court of Appeals

168 S.W. 428

TEXAS & N. O. R. CO. v. CUNNINGHAM et al.

(No. 6605.)^†

Court of Civil Appeals of Texas. Galveston.

May 19, 1914.

Rehearing Denied June 25, 1914.

Appeal from District Court, Jefferson County; John M. Conley, Judge.

Action by Jessie P. Cunningham and others against the Texas & New Orleans Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, of Houston, and Hightower, Orgain & Butler, of Beaumont, for appellant. W. O. Davis, of Gainesville, R. E. Thomason, of El Paso, Smith, Crawford & Mead, of Beaumont, and Robert T. Neill, of El Paso, for appellees.

McMEANS, J.

Mrs. Jessie P. Cunningham and her two minor children brought this suit against the Texas & New Orleans Railroad Company to recover damages for the death of John P. Cunningham, the husband of Mrs. Cunningham and the father of the minors, alleged to have been occasioned by the negligence of the railroad company. Plaintiffs alleged that on the 18th day of March, 1912, defendant owned certain railroad tracks in the city of Port Arthur, and that its main track and numerous side tracks crossed Eighth street and other streets in said city, which Eighth street was alleged to be a public crossing, and used generally as such by the public; and that on said date defendant's side tracks between Eighth street and its passenger depot, alleged to be two blocks east of Eighth street, were blocked with freight and other cars, some of them extending into Eighth street; and that the view of said crossing towards defendant's passenger depot was obstructed and obscured by the standing cars and defendant's freight depot, so that one using the crossing over said track could not see or know of the approach of a train from that direction; and that John P. Cunningham, the husband and father of plaintiffs, while traveling along said Eighth street in a wagon in a southwesterly direction, with due care attempted to cross defendant's track, and, while attempting to cross said track, defendant's passenger train, which was backing from its passenger depot in a northwesterly direction along one of its tracks at a rapid and dangerous rate of speed, struck the wagon which John P. Cunningham was driving, and threw him from the said wagon, under the wheels of the cars, which passed over him, killing him instantly. The grounds of negligence charged against the defendant, in so far as the same were submitted to the jury in the charge, were: (1) That defendant's employés were guilty of negligence in not blowing such whistles or giving such other signals at the rear of said train as would apprise persons of the approach of said train in time for them to avoid a collision therewith. (2) That the defendant and its employés were guilty of negligence in running said train at that point in view of the existing conditions, at a great rate of speed. (3) By reason of the fixed obstruction constituted by defendant's freight depot and the obstructions then existing by way of freight cars being located on the side track so as to obstruct the view, and the fact that there were numerous tracks of defendant crossing said Eighth street, and the frequent use of the place by the defendant and the public, that defendant was guilty of negligence in not keeping a watchman at said crossing to warn the public in passing of the approach of trains. Defendant answered by general and special exceptions, and by a special plea of contributory negligence, alleging that the deceased attempted to cross the railway track, at the time in question, immediately in front of appellant's train, without first having taken any precaution to avoid a collision with said train, and that on the occasion in question he failed to use due and proper care for his own safety and protection while approaching and attempting to cross the track, and without having first ascertained or attempted to ascertain the presence of defendant's train at said crossing or its approach thereto. The case was tried before a jury and resulted in a verdict and judgment for plaintiffs for $30,000, of which $10,000 was apportioned to Mrs. Cunningham and a like amount to each of said minors. From this judgment the defendant has appealed.

By its first assignment of error appellant complains of the action of the court in refusing to give to the jury its first special charge, which was a peremptory instruction to return a verdict in its favor.

By its several propositions under the first assignment appellant contends: (1) That the evidence was insufficient to raise the issue as to whether or not the defendant was negligent in not giving sufficient signals of warning of the approach of the train to the Eighth street crossing; (2) that the evidence did not raise the issue of its negligence in respect of the speed of the train when it reached the crossing; (3) that the evidence did not raise the question of negligence of defendant in failing to have a flagman at the crossing, sufficiently to require the submission of that question to the jury; and (4) that the undisputed evidence shows that deceased was guilty of contributory negligence as a matter of law.

The undisputed evidence in this case is that the deceased, John P. Cunningham, was killed by being run over by one of appellant's passenger trains while he was attempting to cross appellant's railroad track, while traveling along Eighth street in the city of Port Arthur; that the train was running backward at the time and consisted of two coaches, a baggage car, tender, and engine; that Eighth street ran in a northerly and southerly direction, and the railroad track at the place of the injury ran in an easterly and westerly direction; that Seventh street is the next street east of Eighth; that Sixth is the next street east of Seventh, both running parallel with Eighth, and these streets are about 300 feet apart; that appellant's passenger depot is north of its railroad track and is between Sixth and Seventh streets, nearer the Sixth street line; that its freight depot is also on the north side of the railroad track and is between Seventh and Eighth streets, nearer the Seventh street line; that there is a switch track on the north side of the main track which runs from the freight depot parallel with the main track, crossing Eighth street and continuing west. This switch track is about 11 feet from the main track. There was also another switch track north of the one mentioned above running parallel with it across Eighth street and about 40 or 50 feet north of the other switch track above mentioned.

The undisputed evidence shows: That at the time Cunningham was killed there was a string of box cars on the side track nearest the main line above mentioned, which cars extended from Eighth street to the freight depot east and extended from Eighth street west for some distance, leaving an opening at the Eighth street crossing of some 23 feet. That there was also a string of box cars standing on the northernmost switch track on both sides of Eighth street, leaving an opening at Eighth street a little wider than the opening through the string of cars on the other switch track. That the string of cars on the switch track nearest the main line east of Eighth street extended to the freight depot. That the freight depot was a large, two-story structure, and beyond this, across Seventh street, was the passenger station. That across the main line of the railroad track from the freight depot is a hotel building, and west of this an outhouse. The passenger train which collided with Cunningham's wagon, a little while before the collision, had passed across Eighth street with the engine in front and stopped near the passenger station, and was backing out from the passenger station at the time of the collision, and that the train was usually operated in this manner. That the deceased, Cunningham, was driving a team of mules hitched to an ordinary farm wagon and was traveling south on Eighth street. There was no bed on the wagon, and he was sitting on the running gear, or rather on the hounds of the wagon. The wagon had a long coupling pole, it being used for hauling lumber.

It was undisputed that one sitting on the running gear of a wagon, approaching the main track, as Cunningham was, could not see down the main line of the railroad track until he emerged between the box cars that were on the switch track nearest the main line; and that the box cars on this switch track and the freight depot east of them would completely hide cars that might be approaching from the east on the main line. It was further undisputed that Cunningham's...