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

Decision Date21 July 1949
Docket NumberNo. 12070.,12070.
PartiesTEXAS & N. O. R. CO. v. SOLGAARD.
CourtTexas Court of Appeals

Baker, Botts, Andrews & Parish, of Houston, and Armstrong, Barker & Bedford, of Galveston, for appellant.

Markwell & Stubbs, of Galveston, Critz, Kuykendall, Bauknight & Stevenson, of Austin, for appellee.

MONTEITH, Chief Justice.

This is an appeal in an action brought by Nils Solgaard, a Norwegian seaman, for recovery of damages for injuries alleged to have been sustained as a result of the negligent operation of a train of freight cars which were being operated by the agents and employees of appellant, Texas & New Orleans Railroad Company, in the vicinity of its switching yards at Galveston, Texas.

Appellee alleged numerous acts and omissions on the part of appellant, its agents and servants, claimed to amount to negligence proximately causing his injuries.

Appellant alleged that appellee had entered a dark and unlighted portion of the yards maintained by the Galveston Wharf Company and various railroad lines knowing that the tracks would be in use at any time by many engines and cars, and that he had failed to exercise proper care for his own safety. It alleged that appellee's injuries were caused by various acts and omissions on his part claimed to amount to contributory negligence.

In answer to special issues submitted, the jury found that the train which ran over appellee was operated by appellant and that appellant was negligent in failing to keep a proper lookout, in operating the train without adequate lights, in failing to give an audible warning of the train's approach and in failing to give the statutory warning. It found that each of these acts constituted negligence and that they were proximate causes of appellee's injuries The jury found that appellee did not attempt to cross the railroad track after hearing the train approaching; that he kept a proper lookout on the occasion in question, and that appellee's injuries were not due to an unavoidable accident.

The jury fixed appellee's damages at the sum of $47,500.

Appellee, Nils Solgaard, was a Norwegian seaman, 21 years of age at the time of the trial. He earned $90 per month and his keep aboard the ship. On the night that he was injured he had gone into Galveston on shore leave from his ship, which was undergoing repairs in Galveston Harbor, and was returning to his ship when he was struck by a train of eighteen boxcars pushed by a switch engine. There were no witnesses to the accident, and appellee was discovered by the engineer of the train on its return trip, east of 27th Street and approximately a block from 28th Street. The evidence is conflicting as to where appellee was struck. He testified that he had walked several steps beyond the track, identified as the third railroad track from the south side of the yards, when he heard a train approaching from his left and that, when he turned and started back, he stumbled and fell.

Appellee contends that he was struck on 28th Street. Appellant contends that appellee was struck somewhere between the intersections of 27th and 28th Streets. It is undisputed that the place where he was struck was unlighted and dark.

Appellant's points of error one to seven, inclusive, are based on the refusal of the trial court to submit to the jury appellant's requested special issues inquiring as to various acts and omissions on the part of appellee which are alleged to constitute contributory negligence and to have proximately caused his injuries.

Appellant alleged as a defense that appellee was negligent in going to and remaining at a place near the railroad track where he was injured, in entering, placing himself on or near the railroad track in position to be struck by railroad traffic using the track and in remaining in the railroad yards, and in continuing to cross the railroad tracks after he had entered said railroad yards.

Appellant prepared and requested the submission of special issues on each of these pleaded defenses, with the attendant issues of negligence and proximate cause. The submission of each of said requested special issues was refused. The only defensive issue submitted was the issue as to whether appellee had failed to keep a proper lookout on the occasion in question and the issue of unavoidable accident.

Under its first point appellant assigns error in the refusal of the trial court to submit its requested special issue inquiring as to whether the jury found that appellee, immediately prior to the time he was struck and injured, had gone to and remained near the railroad tracks between the intersections of 28th Street and 27th Street, with the attendant issues of negligence and proximate cause.

Appellant contends...

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2 cases
  • Solgaard v. Texas & N. O. R. Co.
    • United States
    • Texas Supreme Court
    • April 12, 1950
    ...of Galveston about midnight of September 13, 1947. This judgment was reversed by the Court of Civil Appeals and remanded for a new trial. 223 S.W.2d 665. The first ground of reversal, which was the one most discussed here and below, consisted of the trial court's refusal to submit various i......
  • Texas & N. O. R. Co. v. Solgaard
    • United States
    • Texas Court of Appeals
    • January 18, 1951
    ...of the facts found and the issues presented on the trial of the case are fully set out in the former opinion by this Court at 223 S.W.2d 665, 668, and in the opinion of the Supreme Court of this state, reversing the action of this Court, at 229 S.W.2d In the trial court judgment was rendere......

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