Texas & P. Ry. Co. v. Moody

• Court: Texas Court of Appeals
• Writing for the Court: Hodges
• Citation: Texas & P. Ry. Co. v. Moody, 169 S.W. 1057 (Tex. App. 1914)
• Decision Date: 04 July 1914
• Docket Number: (No. 1274.)
• Parties: TEXAS & P. RY. CO. v. MOODY et al.

169 S.W. 1057

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

(No. 1274.)

Court of Civil Appeals of Texas. Texarkana.

July 4, 1914.

Rehearing Denied October 8, 1914.

Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.

Action by Phebe Moody and others against the Texas & Pacific Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

F. H. Prendergast, of Marshall, for appellant. Lane & Lane and M. B. Parchman, all of Marshall, for appellees.

HODGES, J.

In March, 1913, Dan Moody, the husband of the appellee Phebe Moody, was struck and killed by one of the appellant's trains as he was crossing the track in the village of Scottsville in Harrison county. This suit was brought by the widow and children of the deceased to recover the statutory damages.

The evidence shows that the appellant's line of railway runs east and west through Scottsville, and is there crossed at right angles by a public road. The stores of the village are situated on the south side of the railway track. On the date of the injury two passenger trains going in opposite directions were to pass at the depot at Scottsville. The train from the east had arrived and was standing on a side track about eight feet south of the main line. The train from the west was due to pass about that time. Neither of these trains was scheduled to stop at Scottsville, but passed at that point on this occasion because of one of them being late. Isaiah Jackson, a witness for the plaintiffs, who was with Moody at the time the accident occurred, testifies substantially as follows: The rear end of the train standing on the side track was just clear of the crossing. Witness left Hudson's store on the south side of the track in company with Moody to cross over to the north side at the public crossing. They were starting home, and were expecting to join other parties in a wagon waiting for them on the north side. As they were crossing the railroad the train going east struck and killed Moody. Witness did not hear the train coming, and did not know that it was coming. The first time he saw the train was after he got on the track, and it was then right at him, so close that it brushed him as he jumped off. Witness was in front, and Moody about one step behind. He did not hear any bell ring or any whistle blow. The train was running pretty fast. After Moody was hit the train ran down some distance, stopped, and backed to the place where the injury occurred. On cross-examination he stated that standing on the track he could see a train coming about 50 or 100 yards distant. He saw the train standing on the side track, and was expecting the eastbound train to come right away, but did not know that Moody was expecting it, had not talked with Moody about it, and the latter had said nothing on the subject. Those trains usually met at Waskom, and did not ordinarily stop at Scottsville. Witness was about one step in advance of Moody at the time the latter was struck. Other witnesses testified to substantially the same facts. The trainmen testified that the whistle was blown for the crossing, and the bell was rung. Several witnesses, who were sufficiently near the railway to hear these signals had they been given, testified that they did not hear them. There was some testimony tending to show that the through trains in passing Scottsville sometimes omitted the giving of the required signals. The jury returned a verdict in favor of the appellees for $1,500.

The first four assignments of error complain of the refusal of the court to give designated special charges requested by the appellant. The record contains no bill of exceptions to the action of the...