Texas & P. Ry. Co. v. Tucker

• Court: Texas Court of Appeals
• Writing for the Court: Speer
• Citation: Texas & P. Ry. Co. v. Tucker, 106 S.W. 764, 48 Tex. Civ. App. 115 (Tex. App. 1907)
• Decision Date: 02 November 1907
• Petition History: writ ref'd
• Parties: TEXAS & P. RY. CO. et al. v. TUCKER.<SMALL><SUP>*</SUP></SMALL>

106 S.W. 764

TEXAS & P. RY. CO. et al. v. TUCKER.^*

Court of Civil Appeals of Texas.

November 2, 1907.

On Rehearing, January 11, 1908.

Appeal from District Court, Taylor County; J. H. Calhoun, Judge.

Action by W. H. Tucker, guardian, against the Texas & Pacific Railway Company and another for negligent death. From a judgment for plaintiff, defendants appeal. Affirmed.

Wagstaff & Davidson, for appellants. A. S. Hawkins, Hardwicke & Hardwicke, and Theodore Mack, for appellee.

SPEER, J.

J. E. Tucker, father of the minors Roxie Annie Tucker and Fred Dickson Tucker, was run over and killed by a passenger train of the Texas & Pacific Railway Company at Elmdale Crossing in Taylor county, and W. H. Tucker, as guardian of such minor children, instituted this suit against the railway company and Jim Ellis, the engineer operating the train which killed deceased, and recovered damages for his wards in the sum of $10,150, against both defendants, from which they have appealed.

We rule against appellants on all their assignments save the thirteenth, which is to the effect that the court erred in submitting to the jury the issue of discovered peril, in that there was no evidence on which to base such an instruction, and this we sustain. J. E. Tucker, together with a son 11 years of age, was driving in a wagon along the public highway from Baird to Abilene, and both were killed while crossing appellant Texas & Pacific Railway Company's track at the public crossing at a little station known as "Elmdale." The wagon in which the deceased was driving was drawn by two horses, on either side of which he was leading another horse, and trailing a buggy behind the wagon. The accident occurred at 6:40 p. m. on a cold January evening, when the wind was blowing from the north, and the direction traveled by deceased across appellant's railroad was from the north to the south. The train was running at least 25 or 30 miles an hour and perhaps faster, going downgrade, and no one witnessed the accident save the engineer, the appellant Jim Ellis, upon whose testimony alone the issue of discovered peril was submitted to the jury. The substance of Ellis' testimony is that, as his train approached the Elmdale crossing at about the speed mentioned, he was occupied on the south side of the cab looking out for persons who might be on that side to flag the train, the station being a flag station only, until, as he says, he "straightened up," and looked ahead on the north side, when he discovered the wagon of deceased just coming on to the crossing only 130 feet ahead of his engine. The deceased appeared to be sitting in the front of the wagon wholly unconscious of the approaching train, while the little boy appeared to be trying to extricate himself from some bed clothing which he had about him. The deceased also had his head covered up with a blanket or other covering of some kind, and made no effort to stop or hasten his team, indicating that he never discovered the approach of the train. Upon discovering the wagon so near upon the crossing, the engineer immediately seized the sand lever, and applied the emergency brakes, stopping the train as quickly as it could be done, which proved to be some 800 or 900 feet. He testified that there was nothing he could have done towards stopping the train, after discovering deceased, that he did not do. On looking up the second time after applying the emergency brakes, deceased had already passed beyond his line of vision on to the track ahead of the train, and was almost instantly killed. Witness did not blow the whistle after he discovered deceased approaching the crossing, and his failure in this respect is made the predicate for appellee's insistence that the issue of discovered peril was properly raised by the evidence, but we have concluded otherwise. A simple calculation will show that if appellant Ellis' testimony is correct, and it is upon this appellee relies, it was only about three seconds, perhaps less, after he discovered deceased's peril until the collision resulting in his death. In the very nature of things the engineer could not under such circumstances in so short a time experiment as to the best means to adopt to avert an accident, and we think it would be an unreasonable and an unwarranted conclusion to say that he ought to have done more than he did...