Texas & P. Ry. Co. v. Modawell

• Decision Date: 12 February 1907
• Docket Number: 1,579.
• Citation: 151 F. 421
• Parties: TEXAS & P. RY. CO. v. MODAWELL.
• Court: U.S. Court of Appeals — Fifth Circuit

151 F. 421

TEXAS & P. RY. CO. v. MODAWELL.

No. 1,579.

United States Court of Appeals, Fifth Circuit.

February 12, 1907

This was an action brought by George W. Modawell against the Texas & Pacific Railway Company to recover damages for an injury which he sustained by being run over by the cars of the defendant company while walking along its track in the parish of Pointe Coupee, La., near Morganza station. An extract from the plaintiff's declaration will show his case as presented to the court: 'Your petitioner shows that the said railroad company was at the time constructing a roadway from New Roads to Torras station, in the parish of Pointe Coupee (making an embankment and placing thereon crossties and rails on which to run their trains); that the road was in course of construction, the ties and rails having been laid from New Roads to above Morganza station; that the said company was at the time filling in the roadbed with earth and was running construction trains over same; that an embankment of earth about 2 1/2 feet high was on either side of the rails; that your petitioner was walking on the track on his way home; that said roadway was used by the general public that a construction train drawn by engine No. 117, consisting of a number of flat cars loaded with earth, passed up above the Fordoche or Morganza crossing; that your petitioner seeing the said train coming stepped off of the track permitting same to pass, that he stepped back upon the track and continued to walk on same on his way home; that he was at the time near the station of the Texas & Pacific Railway in this said parish and known as Morganza station, and also near the railroad crossing known as Fordoche crossing; that the said construction train passed up above the said station passed the public crossing, and a few moments later returned down the track, running backwards on their way to the New Roads station; that the said engine No. 117, with cars attached and running backwards, ran into him from behind that he had no warning of the approach of the train until same was upon him that he at once jumped off of the track, falling upon the embankment of earth on the side of the track; that the loose earth caused him to slip back, and his left foot was run over by the said cars and engine, and that same was crushed by the said cars and engine of the said Texas & Pacific Railway Company."

In his testimony on the trial of the case the plaintiff said: 'It was at Morganza, Pointe Coupee parish, in the afternoon between sundown and near dark. I had been working the whole day and was walking along the track. * * * It was, I think, the 9th of December, 1901. * * * And I started back home and met the train and stepped off of the track, and it passed, and I stepped back on the track again, and it came back, backing backwards, and it run onto me before I knew it. I just heard her rumblings, looked back, and jumped on--there was an embankment of earth at the side where I jumped. They were preparing to raise the roadbed, and I jumped off and fell back, and one foot was crushed off. ' The witness then stated, 'It was just a little before dark,' but was 'tolerably light,' and you could see or discern objects. He then stated that it was only a few moments after the train met him when he stepped off of the track until it came back. The cars were so near him when they came back and he jumped from the track that he threw out one hand and caught against the car. Another man named Sanchez was with him when he jumped off on one side, and 'he jumped the other way and was not hurt. ' Further on in his testimony, on cross-examination, the plaintiff said: 'Q. Now, you say you jumped? A. Yes, sir. There was an embankment of earth on either side of the track. Q. How was that embankment out there? A. Unloaded from flat cars. Q. What were they going to do with it? A. I think preparatory to raising the roadbed. Q. You are a carpenter, and I suppose you understand that this earth is taken on flat cars, then it is plowed off on both sides of the track, and then they jerk the track up and slide dirt there and put the track back on this concrete. That is what they were purposing to do there? A. Yes, sir. Q. Then, this day, on each side of the track there was a mound which had to be in that shape-- conical-- hand't it? How high was that? A. Well, I did not notice. I suppose somewhere near two feet high. Q. Soft dirt, or had it been there a good while? A. It had been settled down. It was tolerably hard, but slippery. Q. Slippery? A. Yes, sir. Q. You say when you jumped you got clear off the track. Is that right? A. I jumped to jump clear off the track, and my foot slipped on that embankment right by the track, and my foot was caught by the car.'

The above fairly presents the facts and circumstances connected with the accident to the plaintiff. The trial of the case resulted in a verdict for the plaintiff, and the case is here on exceptions to instructions given and refused in the Circuit Court.

Charles P. Cocke, for plaintiff in error.

M. T. Hewes, for defendant in error.

Before PARDEE and McCORMICK, Circuit Judges, and NEWMAN, District judge.

NEWMAN District Judge (after stating the facts).

The exceptions in this case raise the important question as to whether the court erred in instructing the jury in this case as follows:

'Therefore, the main questions for you to decide are whether the railroad was at fault in the manner in which it operated its train on the occasion in question; whether that fault-- if there was fault-- was the proximate cause of the injury; whether the plaintiff contributed by his negligence to his injury; and whether, even if the plaintiff was himself at fault and negligent, and thereby helped to bring about the injury, the defendant railroad company could by the exercise of due care and diligence have avoided the accident. If it could have done so and did not do it, it would be liable.'

And in refusing to give at the request of defendant's counsel the following:

'Under the circumstances of this case, the plaintiff being a trespasser upon the tracks of the railroad company, it owed him no duty except to exercise proper care to endeavor to save him from injury after his presence on the track and his peril were discovered.'

And also the defendant's request as follows:

'The burden is on the plaintiff to prove to you by a preponderance of credible evidence three things, to wit: (1) That he was discovered by the defendant's employes in a position of peril; (2) that he was discovered in time for the injury to have been averted by the exercise of reasonable care on the part of the defendant's employes; and (3) that defendant's said employes failed to use reasonable care and diligence to avoid the injury after discovering the plaintiff's peril, notwithstanding that they had time and opportunity to use such care. Failing to prove to your satisfaction any one of these three things, the plaintiff is not entitled to recover in this case.'

Other requests along the same line were made raising the question stated above as to whether the defendant company owed the plaintiff any duty except to do what it could to avoid injury after his peril was discovered.

The learned judge trying this case in the Circuit Court based his ruling, which resulted in his charge as given above, and in refusing to charge as stated, on the case of Turnbull v. New Orleans & C.R. Co., 120 F. 783, 57 C.C.A. 151. Decisions of courts must always be taken, to some extent at least, in connection with the facts in the case decided. The Turnbull Case was one of injury to a child eight years of age, at a public crossing; and that there is a marked difference between that case and the instant case, where a man of mature years was walking along the track of a railroad company away from a crossing, is apparent. In the Turnbull Case, in the opinion by Circuit Judge McCormick, this language was used:

'After a careful examination of a number of recent decisions of the courts of highest authority and of the most approved text writers, we conclude that the requested charge was not too broad, and was not misleading, and that the excerpt from the trial judge's general charge does not fully state the true rule, but omits to instruct the jury that, if the motoneer ought to have discovered the danger of the child in time to save it, he could recover, notwithstanding his own contributory negligence.' Undoubtedly, if a motoneer, operating a street car approaching a public crossing of a street, ought to have discovered the peril of a child eight years of age on the crossing in time to save it, the company would be liable. Approaching a street crossing where people at any time are liable to be and almost certainly are, is an entirely different thing from running a railroad train along the track in the country away from crossings, and where the engineer in charge of and operating the train has no reason to expect the presence of persons on the track. In the first instance, the person is where he may lawfully be; in the second instance, he is clearly and under all the authorities a trespasser. We think the rule is too well settled in the courts of the United States to be now questioned that the only duty owing by a railroad company to a trespasser upon its tracks away from a public crossing is, at the most, to do all it reasonably can to prevent injury to such trespasser after discovering his peril. Some of the cases hold that the only duty is that of ordinary care to prevent injury; but the most extreme view that can be taken of the adjudged cases is that the employes of a railroad company should do everything they reasonably can to prevent injury after discovering the trespasser's presence on the track.

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