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

• Decision Date: 19 June 1907
• Citation: 104 S.W. 408
• Parties: TEXAS & N. O. R. CO. v. SCARBOROUGH et al.
• Court: Texas Court of Appeals

104 S.W. 408

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

Court of Civil Appeals of Texas.

June 19, 1907.

Rehearing Denied October 9, 1907.

Appeal from District Court, Jefferson County; L. B. Hightower, Judge.

Action by R. A. Scarborough and others against the Texas & New Orleans Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood and Chester & Da Ponte, for appellant. Smith, Crawford & Sonfield and Lovejoy & Parker, for appellees.

NEILL, J.

This is a suit by the mother, wife, and child of Al. W. Scarborough against the railroad company to recover damages for his death alleged to have been caused by defendant's negligence. The trial of the case resulted in a judgment in favor of plaintiffs for $15,000, apportioned among them as follows: $7,500 to the wife, $3,750 to the child, and $3,750 to his mother.

The ground of negligence alleged and relied upon by plaintiffs to sustain the judgment, and the defensive matters pleaded by defendant, will be stated in considering the assignments of error, the first of which complains that the court erred in overruling defendant's motion for a new trial on the ground that "the evidence wholly fails to show any negligence on the part of the defendant towards the stranger, or third person, whom it is alleged deceased sought to rescue, that in any manner contributed to the accident." This assignment indicates the ground of negligence alleged by the plaintiffs upon which the judgment was recovered. It is, in substance, that on December 2, 1902, while defendant was engaged in switching cars in its yards in Beaumont, a stranger was standing on one of defendant's tracks, known as the "House Track," near the platform of its freight depot, and that the engineer, fireman, and other agents and servants of defendant, who were operating a string of cars on said house track, saw the stranger and realized the danger of his being caught between said cars and the platform in time to have stopped the cars and averted the danger to which he was exposed; that the deceased, who was one of defendant's switchmen assisting the crew in switching the cars, seeing and realizing the stranger's position of imminent peril and danger of being run down and killed by the backing cars, undertook to save, and did save, his life by running forward and shoving him off the said track or from between the same and said platform, and that, while in the act of thus saving the stranger from injury and death, which would have ensued but for deceased's intervention, deceased was, without negligence on his part, caught between one of the cars and the platform and killed. Before considering the question of the sufficiency of the evidence to support the judgment, we deem it proper to first state the principles of law applicable to a case of this character, and we will then determine whether there is any evidence in the record to bring the case within the rule which entitles a recovery in such a case.

One who imperils his own life, for the sake of rescuing another from imminent danger, is not chargeable, as a matter of law, with contributory negligence; and, if the life of the rescued person was endangered by the defendant's negligence, the rescuer may recover for the injuries which he suffered from the defendant in consequence of his intervention, or, if the injuries result in his death, those to whom the law gives the right of action are entitled to recover. This rule rests upon the law having such a high regard for human life it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of a prudent person. And it is for the jury to say, under all the circumstances of the case, whether the conduct of a person injured in an attempt to save another from danger is to be deemed so reckless as to defeat a right of recovery. 1 Shear. & Redf. Neg. (5th Ed.) § 85; Watson's Personal Injuries, §§ 102, 105, 106. It is apparent from the principles enunciated that the sine qua non of recovery in such a case is that the imminent peril from which one is sought to be rescued was caused by the negligence of the defendant. However commendable and praiseworthy may be the voluntary act of benevolence of one who imperils his life to save the life of his fellow man, its costs cannot be charged to and collected from another, unless his negligence was the occasion of such commendatory act. But wherever the party sought to be rescued from imminent danger could have himself recovered had he been injured by the negligence of the defendant, he who undertook to rescue him from his peril can maintain his action for any injuries he may have incurred in his undertaking, if he were not so reckless in it as to defeat a recovery.

Before considering the evidence relative to the accident, in order that it may be understood, we will describe the premises where it occurred. At the time of the occurrence defendant's passenger and freight depots were situated west of and contiguous to Pearl street, which runs north and south. The two depots were something near 50 feet apart; the passenger depot being north of the other. On the east side of Pearl street opposite the freight depot was situated the Wells Fargo Express Building. The railroad yards were two or three blocks to the west of the depots. The defendant had two tracks extending east and west through the city, which crossed Pearl street at right angles and traversed the space between the two depots. They were about 20 feet apart. The one on the north, next the passenger depot, was the main track; and the one on the south, near the freight depot, was called the "House Track," which was for the purpose of placing cars at the freight depot to be loaded and unloaded. Crossing Pearl street from west to east this track curves to the south after passing the northeast corner of the Wells Fargo Express Building. There extended east and west, along the north side of the freight depot, 200 feet, a platform so near the house track as to render it exceedingly perilous for a man to be caught between such platform and the cars switched along that track. At the northeast corner of this platform were the steps to it, extending from the sidewalk on Pearl street. There was a slight curve in the house track on Pearl street, which extended past the east end of the depot platform so as to make the track nearer the platform at that end than elsewhere. Opposite the passenger depot, on the north side of the main track, was a switch stand connecting this line with a "Crossover" track which ran diagonally southeast across Pearl street, connecting with the house track near the east corner of the Wells Fargo Express Building, where there was another switch stand. About noon, on the day of the accident, the switching crew, of which deceased was foreman, had gone on the house track and hauled out a string of cars, and, passing over the tracks described, pushed them down into the yards and then returned with five or six cars over the same tracks and was backing them onto the house track, to be left at the depot when the accident occurred. In returning with this string of cars the deceased stepped off the footboard of the engine at the switch stand on the main track opposite the baggage room of the passenger depot. The testimony shows that he got off for the purpose of protecting the switch and pedestrians passing along Pearl street between the passenger and freight depots. After he got off there, the engine and cars ran down to the switch by the express office, and Frank Ash, a switchman, got off the footboard of the engine at the switch stand and threw the switch so as to back the cars on the house track along the side of the freight platform. As to what then occurred, Frank Ash testified as follows: "Just as I threw the switch I saw a man standing on the track at the corner of the freight depot near Pearl street by the steps looking at a paper he had in his hand. I then saw Scarborough throw up his hands and hallooed at the man, and as the cars came onto Pearl street about 30 or 40 feet from where the man was standing, Scarborough ran across from the corner of the passenger depot and shoved the man with both hands off the track onto the steps, and then tried to jump on the platform of the freight depot; but before he could get up about five feet of the front car had passed him, and the center of the car, which was an extraordinarily long and large furniture car, swung in towards the platform and caught him between it and the platform and rolled him along until the car got on the straight track, and he was released and fell to the ground under the car, and just then the car stopped." He also testified that when he last saw Scarborough before he shoved the man off the track he was standing on the platform of the passenger depot on corner of Pearl street, and where he (Ash) stood was about 75 feet from it; that the cars were moving back at the rate of two miles an hour; that the end of the car had passed Scarborough about 5 feet when it commenced to roll him; and that the cars moved about 10 feet after Scarborough was caught. Two other witnesses testified substantially the same as Ash in regard to seeing a man standing on or between the house track and the corner of the freight depot with his back towards the approaching cars with his eyes fixed upon a paper, in seeming oblivion of the approaching cars and of the danger to which he was exposed; that Scarborough hallooed at him, ran to him, and pushed him off from his place of danger; and that he (Scarborough) was himself caught between the car and platform and killed. The man who was thus rescued was not and could not have been seen by the engineer who was operating the engine, because the engine was around the curve and his view obstructed by the Wells Fargo Building. Ash was the only one of the switching crew who saw the imminent peril of...