Texas & P. Ry. Co. v. Staggs

• Decision Date: 30 May 1896
• Citation: 37 S.W. 609
• Parties: TEXAS & P. RY. CO. v. STAGGS et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

37 S.W. 609

TEXAS & P. RY. CO. v. STAGGS et al.¹

Court of Civil Appeals of Texas.

May 30, 1896.

Appeal from district court, Tarrant county; S. P. Greene, Judge.

Action by Mrs. C. A. Staggs and others against the Texas & Pacific Railway Company for the death of the husband and father of plaintiffs, caused by defendant's negligence. From a judgment in favor of plaintiffs, defendant appeals. Reversed and remanded.

Stanley, Spoonts & Thompson, for appellant. R. L. Carlock and J. E. Martin, for appellees.

HUNTER, J.

The facts in this case are as follows:

(1) On the 13th day of April, 1892, at about 4:50 o'clock p. m., J. W. Staggs was walking or slowly running along on the main track of the appellant's railroad, about 140 yards west of a switch station in Parker county known as "Anneta." He was running eastward towards the station, and intended to become a passenger on the east-bound passenger train, which was due at that station at 5:08 p. m., when he was struck by the pilot beam of a freight engine of appellant's in charge of appellant's servants, which was running east, as variously estimated, at the rate of from 18 to 40 miles an hour, and was killed almost instantly.

(2) The track was used as a walk way by the people of that neighborhood, and had been for years, in going to and returning from the post office at the station, without any objection from the company.

(3) Appellant's engineer and fireman in charge of the engine saw deceased on the track, so running from and in front of them, between the rails, when they were within a half mile of the station, and between a half and quarter of a mile from him. They blew the whistle for a road crossing about a half mile west of the station, and blew for the station. They testify that they were ringing the bell at and before the time the engine struck deceased, and he was in plain view of them from the time they first saw him until he was covered from their view by the front of the engine, and killed.

(4) The evidence is about equally balanced and contradictory as to whether deceased stepped off the track on the north side, a few seconds before he was killed, or continued on the track until a moment before he was struck, when, in attempting to leave it on the south side, the pilot beam struck and killed him. The appellant's engineer and fireman testified that they saw him running along on the track before them, and did not blow the whistle nor make any effort to stop the train or slacken its speed, because they supposed he would get off the track in time to avoid a collision, as they saw him look back several times; but, seeing him tardy about leaving the track, when within about 90 yards of him, the engineer started to pull the whistle cord for brakes, and reverse the engine, when deceased stepped off the track on the left or north side, and about that time the front end, dome, and sand box of the engine covered him from their view, and the next they saw of him was a moment afterwards, when he was thrown off by the pilot on the right or south side of the track, and killed. The appellees' two witnesses viewed the accident from opposite sides of the road, and obliquely from the front. They were about from 100 to 140 yards east of the place where he was killed, and nearly in front. They saw the train coming upon deceased, and saw him trotting along on the track in front of the engine from the time the train came in sight—between a half and quarter of a mile—until he was struck and killed. One of them testifies that the bell was ringing about the time he was struck; the other says he never heard it. They both testify that deceased did not look back after they noticed him on the track, nor attempt to leave the track, until a moment before he was struck, when he threw his head around to the right, and was in the act of leaving the track on the south side, with one foot on the outside of the south rail and the other on the inside, when the pilot beam struck him, and knocked him obliquely forward from the engine. They ran to assist him at once, but he was about dead when they reached him, and was badly mangled.

(5) The evidence establishes that the train, at the rate of speed it was running, could not have been stopped under a quarter of a mile, with the appliances at hand; but when the engine is reversed—that is, when its driving wheels are made to turn backwards instead of forward, which the engineer accomplishes by pulling a lever—the speed of the train is checked to some extent at once, and, if the brakes are applied at the same time, the speed is greatly slackened, though it requires longer time for the engineer to call for brakes and get them set than to reverse the engine. This train had no air brakes. With air brakes the engineer could have stopped it in twice its length. The engineer sits where he can reach out and pull the lever, and with the other hand the bell cord.

(6) The deceased was 60 years old on his last birthday, July 3, 1891. He was a farmer and carpenter, and sometimes dealt in live stock, and was living on his farm, about 2½ miles west of Anneta, though his wife and some of his children were residing at Ft. Worth, and he was on his way to visit them when killed. He left a wife, Mrs. C. A. Staggs, and eight children. The names of his children are as follows: Mary Reynolds, wife of B. C. Reynolds, John, James F., Milliard, Belle Belknap, wife of R. W. Belknap, Dora, Elijah, and Charley Staggs. He was in good health, and "never had any sickness to amount to anything." His hearing was not very acute, though he heard ordinarily well. The same could be said of his eyesight. By the American Experience Table his life expectancy was 13 years and 5 months.

(7) The evidence of the plaintiffs is sufficient to sustain the verdict of $5,000, and we cannot say that the amount, though large, is excessive. The evidence of the defendant is also sufficient to have warranted a verdict for it.

The two theories of the case as made by the evidence of appellant's and appellees' witnesses respectively, in our opinion, were fully and fairly submitted to the jury by the charge of the court, the material parts of which being as follows:

"(2) It is the duty of the employés in charge of railway trains, in moving over and along its tracks, when it is discovered by them that a person is on the track in front of such moving train, to use such care and prudence as a man of ordinary prudence would exercise under like circumstances, to see and determine when, if at all, such person is in actual danger by reason of the approach of said train, and thereupon—that is, upon discovery that such person is in such actual danger—then to use that degree of care and prudence which a man of ordinary prudence would exercise under like circumstances, in employing all the means reasonably within their power to so control the movement of the train as to prevent (if possible) injury to such person so on the track. Such employés, however, have the right to presume that such person so on the track. being an adult, will leave the track in time to prevent injury to himself from an approaching train of which he has knowledge, or should have knowledge by the ordinary use of the senses of hearing or seeing, and such employés have the right to act on such presumption unless or until (if at all before the injury occurs) such employés become aware, or by the use of that degree of care and prudence which a man of ordinary prudence would use under like circumstances should have become aware, that such person would not probably leave the track in time to prevent being injured by said train; and a failure of such employés to do their duty in the manner and under the circumstances as aforesaid would constitute negligence on the part of such railway company.

"(3) Now, if you believe from the evidence that the employés of defendant in charge of its train when and where the said J. W. Staggs was killed, by the exercise of the care and prudence which a man of ordinary prudence would have exercised under like circumstances, could and should have, under the circumstances then surrounding them, and under the instructions hereinbefore given you, discovered, in time to have enabled them, by the use of the means reasonably within their control, to have prevented or lessened the injuries received by him, that said Staggs was in actual danger from said moving train, and that he would probably...