Texas & P. Ry. Co. v. Hughes

• Decision Date: 25 January 1917
• Docket Number: (No. 1708.)
• Citation: 192 S.W. 1091
• Parties: TEXAS & P. RY. CO. v. HUGHES et al.
• Court: Texas Court of Appeals

192 S.W. 1091

TEXAS & P. RY. CO. v. HUGHES et al.

(No. 1708.)

Court of Civil Appeals of Texas. Texarkana.

January 25, 1917.

Rehearing Denied February 1, 1917.

Appeal from District Court, Cass County; H. F. O'Neal, Judge.

Action by Beulah Hughes and others against the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

This appeal is from a judgment against appellant and in favor of appellees, to wit, Mrs. Beulah Hughes, the widow, Mrs. Virginia Hughes, the mother, and Mabel, Hazel, Marshall G., George T., Jessie L., and Beulah Ruth Hughes, the children of George E. Hughes, for $15,000 as damages they were entitled to because of the death of said George E. Hughes, which they alleged was caused by an injury sustained by him as a result of negligence of appellant while he was a passenger on one of its trains. In their original petition appellees, after alleging that appellant, on December 3, 1914, negligently permitted

"a large pine tree to stand within about 65 feet of its line of railway and within reach of said railway should the same fall, which was at all times a menace and imminent danger to passenger traffic over said railway. That said tree was liable at any time to fall across the said track of said railway. That for a long period prior to the above date defendant had notice of the dangerous condition of said pine tree, or by the exercise of ordinary care could have learned of its dangerous condition, and it was the duty of defendant to have removed said tree long prior to said date,"

further alleged that on said December 3, 1914,

"said tree, just prior to the time the passenger coach on which said George E. Hughes was riding had reached the point opposite same, had fallen toward and on said railway track, extending the limbs and branches of the same across said railway track and on and against said railway train, so that the limbs of said tree, which were large and dangerous, and without any fault on the part of said George E. Hughes, and while said train was being rapidly propelled by the agents and employés of defendant, struck said George E. Hughes on the back of the head, and just in the rear of his left ear, a severe blow, thereby * * * badly lacerating and bruising his head and causing a severe shock, and * * * did fracture his skull and inflict upon him a painful and fatal injury, from which said wounds and injuries aforesaid he languished until on or about the 14th day of October, 1915, when he died."

In the amended petition, on which the trial was had, the allegations in regard to the position of the tree, the danger therefrom to trains, and appellant's knowledge thereof were repeated and followed by allegations that when the train reached a point on appellant's track opposite point where the tree had been standing it

"collided with said tree, and the limbs and branches thereof which obstructed the track of defendant and the safe passage of said train, which was occasioned by said tree falling on or across the track or on the train of defendant, collided with said train, on which the said George E. Hughes was being conveyed; and plaintiffs allege that as the result of said collision with said tree, which had fallen on the track, or on the train, of the defendant as aforesaid, and by reason thereof a limb of said tree, or some part of said tree, struck the said George E. Hughes on the back of his head a severe blow, thereby seriously and fatally wounding the said George E. Hughes, and said wound inflicted as aforesaid did then and there bruise and wound him on his head, causing a severe shock to his head, back, spine and nervous system, and by the means aforesaid and in the manner aforesaid * * * injured his brain and the blood vessels leading thereto, and from which wound and injuries he, the said George E. Hughes, languished until about the 14th day of October, 1915, when he died."

It sufficiently appeared from the testimony that on the morning of December 3, 1914, deceased and his brother, John Hughes, were passengers on one of appellant's trains from Atlanta to Texarkana; that they sat together on a seat in the car, deceased being next to a window thereof; that when the train reached a point between Alamo Station and Sulphur river, and while it was moving rapidly, it collided with the limbs of a tree which had fallen toward appellant's track; that one of the limbs, after breaking the glass of the window by which deceased was sitting, struck him back of his ear on the left side of his head; that as a result of injury inflicted by the blow he died in October, 1915; and that by his death appellees were damaged in the sum found by the jury. John Hughes' account of the accident, testifying as a witness, was as follows:

"At the time he [deceased] was injured he was sitting by the window, and he was on my left, and we were going along there talking. His face was turned toward me when he was talking, and his head towards the back of the window that he was sitting by; and all at once something hit him, or he hallooed, and he fell over on me and said, `I am hurt.' He was rubbing his head and said, `I am hurt.' It was on the back of the head, just back of his left ear, along about the base of his skull. We didn't know what had happened to the train. We noticed some of the lights of the windows were broken out, and especially the one we were sitting by. When the crash came he fell on me and threw his hand up to his head and said he was hurt, and he hallooed. At the time that he was knocked over on me I heard something like a crash, like something had struck the train. It made a quick racket, more like lightning had struck it than anything else."

Appellant's track ran about north and south at the point where the accident occurred. The tree (a pine) before it fell stood 61 feet from the track on land west of and adjacent to appellant's right of way. Extending from the ground about 4 feet up and along its north side, and visible from appellant's track, was what witnesses designated as a "cat-face," which, they explained, indicated decay, caused by a burn or something else. The cat-face was about 12 inches wide. There was no evidence that a wind was blowing at the time the tree fell, or that it fell because of any unusual condition then prevailing.

The charge to the jury required the jury to find for appellant unless they believed it was guilty of negligence in failing to discover the dangerous situation and condition of the tree and remove it prior to the time it fell. The jury found, on evidence which, we think, authorized them to do so, that appellant was guilty of negligence in the particulars stated.

Glass, Estes, King & Burford, of Texarkana, and Figures & Stewart, of Atlanta, for appellant. O'Neal & Allday and Hugh Carney, all of Atlanta, for appellees.

WILLSON, C. J. (after stating the facts as above).

The court did not err in overruling appellant's petition to remove the cause from the state to a federal court on the ground that it was incorporated under an act of Congress. T. & P. Ry. Co. v. Hanson, 189 S. W. 289.

In their original petition appellees alleged, as is shown in the statement above, that the tree fell "just prior to the time the passenger coach on which said George E. Hughes was riding had reached the point opposite same," and that deceased was struck by limbs of the tree on the back of his head, "causing a severe shock" and fracturing his skull, from the effects of which he died. The allegation as to the time when the tree fell was not carried into the amended petition, on which the trial was had filed on the day before the trial commenced, but it was alleged therein that the collision "was occasioned by said tree falling on or across the track or on the train"; and, as a further consequence to the deceased of the injury caused by his being struck on the head by limbs of the tree, it was alleged that he...