Texas & P. Ry. Co. v. Gibson

• Decision Date: 01 December 1926
• Docket Number: (No. 699-4622.)
• Citation: 288 S.W. 823
• Parties: TEXAS & P. RY. CO. v. GIBSON.
• Court: Texas Supreme Court

Page 823

288 S.W. 823

TEXAS & P. RY. CO. v. GIBSON.

(No. 699-4622.)

Commission of Appeals of Texas, Section B.

December 1, 1926.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by Barrett Gibson administrator of the estate of S. L. Jones, deceased, against the Texas & Pacific Railway Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (281 S. W. 652), and defendant brings error. Affirmed.

F. H. Prendergast, Geo. Prendergast, and Bibb & Caven, all of Marshall, for plaintiff in error.

S. P. Jones, of Marshall, Barret Gibson, of Fort Worth, and P. G. Henderson, of Jefferson, for defendant in error.

POWELL, P. J.

The Court of Civil Appeals, so far as it undertakes to do so, accurately states this case as follows:

"Appellant was a common carrier engaged in interstate commerce December 11, 1923, when S. L. Jones, employed by it in such commerce, was run over and killed by an engine and cars then being used in switching operations at and near a point where appellant maintained a drawbridge over a bayou at Plaquemine, La. On the theory that Jones' death was due to negligence on the part of employees of appellant in charge of said engine and cars, in that they failed to keep a lookout for Jones during said switching operations, and failed to warn him of the movement of the engine and cars at the time same ran over and killed him, this suit for damages was prosecuted by appellee (as the administrator of Jones' estate) for the benefit of Jones' sister, a widow, and her minor daughter, alleged to be wholly dependent upon him.

"It appeared from testimony heard at the trial that the bridge referred to was about 100 feet long. It was in two sections, and was described by a witness as `a jackknife bridge, which opened up in the middle and didn't turn.' Appellant's main line track and a side track, parallel with, and about 8 feet south of, said main line track, ran east and west where they crossed the bridge. Three spur tracks to a lumber shed east of the bridge and south of said side track were connected to the side track by switches; the switch farthest west being about 115 feet east of the bridge. At about 8 o'clock of the morning of the accident employees of appellant in charge of a west-bound freight-train, consisting of an engine and 75 or 80 cars, stopped on the main line track a short distance east of the bridge, and the men in charge thereof signalled to ascertain if the bridge was adjusted for use by the train in passing over the bayou. Jones was, and for about 20 years had been, the tender of the bridge. As such it was his duty to answer the signal. He did so from a point on the bridge where he was standing, advising the trainmen that the bridge was adjusted for such use. Thereupon the train moved west on the main line track and passed over the bridge at a speed of about 6 miles per hour. While the train was so passing, the engine used in switching cars on the side and spur tracks pushed a car west on the side track to a point on the bridge, and then back east to the main line track. Directly thereafter Jones was found dead on the side track. His head had been severed from his body, and was lying on the ground 8 or more feet east of the east end of the bridge. His body was on the bridge, a short distance from the east end thereof. At the time of the accident the switching was being done in the way it had been the practice to do it; that is, the engine and cars were moved west on the side track to and onto the bridge and east to and onto the main and spur tracks, as was thought to be necessary, without a signal from the deceased to do so, and without keeping a lookout for him, or in any way warning him of the movements. None of the witnesses saw the accident. When Johnson, the engineer on the west-bound freight train, last saw deceased, he was on the bridge signalling him (Johnson) that the bridge was adjusted for the train to pass on it. When Hay, the conductor of an east-bound freight train, last saw deceased, he had given the signal to Johnson, and was standing 50 or 60 feet east of the bridge on the side track; and, when Giardince, fireman on the engine pushing the car which (it circumstantially appeared) ran over and killed deceased, last saw him, he had given the signal to Johnson, and was walking south from the main line track, and had reached the side track on which the engine was pushing the car toward the bridge. Giardince said that said engine and car at that time were about 1,000 feet east of the bridge. Marks on the ground east of the bridge, where deceased's head was found, indicated that he was struck by the car at that point, and blood and other marks indicated that his body was dragged from that point to the point where it was found on the bridge. The appeal is from a judgment, based on the verdict of a jury, in appellee's favor against appellant for the sum of $7,000."

In rendering its opinion in the case, that court speaks, in part, as follows:

"On the theory that the testimony did not warrant a finding that it was guilty of actionable negligence, and demanded a finding that the deceased was guilty of negligence which `was the direct cause of his death,' appellant requested the trial court to instruct the jury to return a verdict in its favor, and complains here because the court refused to comply with its request.

"If appellant was guilty of negligence as charged against it, the fact, if it was a fact, that deceased also was guilty of negligence which was a contributing cause of the accident, was not a reason why appellee should have been denied a recovery; for the only effect of such negligence on the part of the deceased would have been to diminish the amount appellee was entitled to recover. [8] U. S. Comp. St. § 8659.

"The debatable question, if there is one, involved in the contention, is as to whether there was testimony raising an issue as to whether employees of appellant in charge of the engine used in the switching operations were guilty of negligence in the respects charged against them in appellee's petition. That said employees did not keep a lookout for the deceased, and did not warn him that the engine and cars were approaching the bridge on the side track, appeared without dispute in the testimony. Did they thereby violate a duty they owed the deceased? We think the jury had a right to say they did."

The final conclusion by the Court of Civil Appeals was that the judgment of the district court should be affirmed, and it was so ordered. See 281 S. W. 652.

There are a few other undisputed facts in the record which may have some bearing upon the case. For instance, the local freight train which circumstantially ran over and killed Jones had come in from the west, and had been busily engaged in its switching activities in the yards for about an hour before the accident. Again, it is quite evident that this drawbridge was essentially a dangerous appliance. In performing his duties, Jones was required...