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

• Decision Date: 21 June 1910
• Citation: 130 S.W. 886
• Parties: TEXAS & N. O. R. CO. v. BROUILLETTE.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

130 S.W. 886

TEXAS & N. O. R. CO. v. BROUILLETTE.^†

Court of Civil Appeals of Texas.

June 21, 1910.

Rehearing Denied October 5, 1910.

Appeal from District Court, Orange County; W. B. Powell, Judge.

Action by Fred Otis Brouillette against the Texas & New Orleans Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed upon condition that plaintiff remit part of the recovery.

Baker, Botts, Parker & Garwood and Parker, Hefner & Orgain, for appellant. Holland & Holland, Adams & Huggins, and V. H. Stark, for appellee.

McMEANS, J.

Appellee, Fred Otis Brouillette, a minor, by E. G. Brouillette, next friend, sued the appellant, Texas & New Orleans Railroad Company, for damages for personal injuries received by him through the alleged negligence of appellant, and upon a trial before a jury recovered a judgment for $30,000, from which the railroad company has appealed.

The evidence in the record justifies the following conclusions of fact: Fred Otis Brouillette, two years and seven months old, lived with his parents in the City Hotel, situated on Green avenue, in the city of Orange, a short distance north of appellant's railroad and depot. On November 16, 1906, about noon, appellant's passenger train, headed west, came into Orange, and the engine, passing the depot, stopped at a water tank just west of the depot and of Green avenue, where the engine took water, and, while so doing, the passengers alighted from and entered the cars. The taking of water consumed some four or five minutes. After taking water the train was backed until the baggage car came opposite the baggage room, and this was done in order that the baggage to be placed on the train could be loaded into the baggage car from in front of or near the baggage room. In so backing the train the appellee was run over by the rear coach and injured. When the train came into Orange, E. G. Brouillette, the father of Fred Otis, was in the City Hotel, and immediately upon the arrival of the train started to the depot, which is situated south of the railway track, and on the opposite side of the track from the hotel, leaving Fred Otis with an older brother inside the hotel, sitting at a table eating his dinner. The train having stopped across and blocked Green avenue, and the cars of the train being vestibuled, so that he could not pass between them, Brouillette gained the depot by walking eastwardly by the side of the standing train and crossing the track at the end of the rear car. The presumption is that the child attempted to follow his father to the depot. He had reached and gotten upon the track at the rear of the train at the time or just before the train began to back. He was not seen by any of the train operatives before he was run over. It was shown that Green avenue was a public street and a much traveled thoroughfare in the city of Orange, and that travelers upon it at such times as it was blocked by appellant's trains were compelled to wait until the trains were moved from off the crossing or else to cross the track west of the water tank or east of and to the rear of the train. Before the train began to back, after taking water, the conductor gave the signal to the fireman to back, and the fireman communicated the signal to the engineer, who, in obedience thereto, began to back the train, after first looking toward the rear of the train and seeing that the track was clear on his side. The facts thus far stated are undisputed.

The controverted issues of fact were, first, whether the brakeman went to the rear of the train before it began backing to see if the track was clear; and, second, whether, if he did so, the child was on the track at such a distance from the rear end of the last car that the brakeman in the exercise of ordinary care under the circumstances would have discovered his presence in time to have prevented the injury to him. On these issues the brakeman testified that, when he received a signal from the conductor that the train was to be backed, he immediately went to the rear of the last coach, looked to see if the track was clear, and, seeing no one upon it, swung himself upon the platform steps and gave to the conductor the signal to back, which signal the conductor repeated to the fireman. On this evidence and that of the conductor and of the witnesses Sprouse and Ward, which corroborates it, appellant contends that, if the child was upon the track, he was so close to the car that the brakeman could not have discovered him by the exercise of ordinary care, but that to have ascertained his presence would have had to stoop and look under the car, a pre-caution which the exercise of ordinary care did not require. On the other hand, the witness Labit, a passenger upon the train, testified that, when the train started to back, he, the witness, got upon the hind steps of the second car from the rear, and that after the train had backed about half a car length he heard a child cry; that he jumped to the ground and looked under the car, and saw the child, and that the child was on the track about half way between the rear and front trucks of the hind coach; that the brakeman was standing between the colored waiting room and the baggage room door, on the platform of the old depot, about eight or ten feet from the train at its nearest point and about a coach and a half's length from the rear end; that, when witness first looked at him, the brakeman was not doing anything but standing there; that the train was then backing; that he attracted the brakeman's attention, and he, the brakeman, motioned to the engineer or fireman, and stopped the train. The witness McKay testified that he was at the depot when the child was injured and that the only brakeman he saw was standing on the platform near the cistern between the depot and express office. The testimony is undisputed that there was but one brakeman on the train.

Upon the second disputed point, it was shown by the testimony of the brakeman that, when he reached the rear of the train, he looked to see if the track was clear and saw no one upon it; that the train did not start backing until he got on the end; that as to whether there was anything to keep him from observing the child that, if he had gotten down and looked under the coach, he probably might have seen him; that he could not say where the child was at the time he gave the signal to back up; that he looked back at the train, and the child was not there that he could see; that he did not go back of the train or behind it; that he could see around the corner of the car, and that he looked back of the train from where he was, and that he did not notice the child there before the train started; that the child was not back of the train when it started. The witness Ward testified that he saw the child at the rear of the train just as the train began to move back, and that he was not over two feet from the rear coach at that time. Sprouse testified that the child was not over two or three feet from the rear end of the coach when the train began to back. On the other hand, the witness Wynne testified that he saw the child just as the train started backing, and that he was then coming over the west rail of the track in the rear of the train going to the east side, crossing the rail farthest from the depot, and that he appeared to witness to be about 10 or 15 feet from the rear coach, and that when the car got within about 6 feet, his further view of the child was cut off. The witness Labit testified that the car had moved about half a car length when he heard the child cry. It was shown that a car is 60 feet long. When this witness got upon the ground and looked under the car, he saw the child about half way between the front and rear ends. While there is much in the testimony of the witness Wynne that tended to discredit him, we cannot say that his testimony on this point, in view of the corroboration of the witness Labit, was unbelievable, or such as the jury, acting within their proper province, were not authorized to consider.

Upon these disputed issues of fact we conclude, in deference to the verdict of the jury, that the brakeman and other employés of appellant operating the train did not exercise ordinary care to see that the track was clear before backing the train, and that, had such care been exercised, the child, who was not chargeable with contributory negligence, would have been discovered upon the track and his injury averted.

By its first assignment of error appellant complains of the action of the court in refusing to give to the jury their first special charge, instructing a verdict for defendant. The second assignment complains that the verdict is not supported by the evidence. The only proposition following these assignments is, in substance, that the testimony was insufficient to...