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

• Decision Date: 08 May 1903
• Citation: 74 S.W. 930
• Parties: TEXAS & N. O. R. CO. v. FIELDS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

74 S.W. 930

TEXAS & N. O. R. CO. v. FIELDS.^*

Court of Civil Appeals of Texas.

May 8, 1903.

Appeal from District Court, Nacogdoches County; Tom C. Davis, Judge.

Action by Carrie Fields against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Baker, Botts, Baker & Lovett and Watts, Chester & Ellison, for appellant. Blount & Garrison and O. S. Parker, for appellee.

PLEASANTS, J.

Appellee brought this suit to recover damages for the death of her son, Peter Fields, whose death is alleged to have been caused by the negligence of the appellant. At the time of his death, Peter Fields was in the employment of appellant as a brakeman upon one of its work trains, and was run over and killed by the train upon which he was employed under the following circumstances: The train was engaged in hauling dirt from Ryon's cut, in Nacogdoches county, to the Angelina river, and a short time before the accident had come up to the cut from the river with a string of empty cars, and stopped on the main line of defendant's railroad at said cut. The train consisted of an engine and caboose and 15 flat cars. The caboose was attached to the rear of the engine, which was facing south, towards the river, and the flat cars were in front of the engine. The crew consisted of a conductor, engineer, and fireman; the deceased, Peter Fields, being the head brakeman. In coming from the river, the engine had backed, pulling the empty cars which were attached to its front end. The conductor had ordered the deceased to remain at Poe, a station on the road between the cut and the river, for the purpose of flagging trains that might be coming towards the cut from the south. After standing at the cut for some time, the train started back to the river, and had gone but a short distance when it was discovered that the deceased had been run over and killed. No one saw the accident, and it is not shown what deceased was doing or where he was at the time he was struck. His mangled remains were seen to roll from under the train to the side of the track a short distance from where the train stood at the cut, and within a few seconds after it started back to the river. The evidence is conflicting as to whether the whistle was blown and the bell rung before the train was started, but there is ample evidence to support the finding of the jury that neither of these signals was given. None of the crew of the train knew that the deceased had failed to remain at Poe as he had been instructed, except the fireman, who testified that he saw deceased on the end of the train when he reached the cut, and did not know that he had been ordered to remain at Poe. There were four or five curves between the cut and Poe, one of which was about 250 yards from where the train stood at the cut. The train had been standing at the cut about 40 minutes when it started back to the river. There was another work train standing in the track north of the train by which the deceased was killed, and two of the crew of this train testified that they saw the deceased, about 20 or 30 minutes before he was killed, on the track near the south end of his...