Texas & P. Ry. Co. v. Marrujo

• Decision Date: 14 January 1915
• Docket Number: (No. 380.)
• Citation: 172 S.W. 588
• Parties: TEXAS & P. RY. CO. v. MARRUJO.
• Court: Texas Court of Appeals

172 S.W. 588

TEXAS & P. RY. CO. v. MARRUJO.

(No. 380.)

Court of Civil Appeals of Texas. El Paso.

January 14, 1915.

Rehearing Denied January 21, 1915.

Appeal from District Court, El Paso County; M. Nagle, Judge.

Action by Mipania A. de Marrujo, for herself and as next friend of Sofio Marrujo, against the Texas & Pacific Railway Company. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

Peyton F. Edwards, of El Paso, for appellant. C. L. Vowell, of El Paso, for appellee.

HARPER, C. J.

Appellee, Mipania A. de Marrujo, instituted this suit for herself, as surviving wife, and as next friend of her son, Sofio Marrujo, a minor son, against the Texas & Pacific Railway Company, to recover damages for the death of Victoriano Marrujo, husband and father, alleged to have been caused by the negligence of the defendant. Plaintiff alleged that on or about March 8, 1913, Victoriano Marrujo, while traveling along a public highway which crosses the railway company's line of track, and that while crossing the track at a public crossing on same, in a careful and prudent manner, was run over and killed by a locomotive and train of cars being operated by the employés of the said company; that at the time he was run over the train was being operated at a rapid speed—to wit, 40 miles per hour; that there was no warning signal given of the approach of the train, neither by ringing the bell nor by blowing the whistle, and no headlight burning in said engine; that the approach to said crossing is obscured by buildings, fences of brush and weeds; that at the time of the accident he was attempting to go from south to north across defendant's track along the public highway in the ordinary manner, keeping a reasonably careful lookout to preserve his life and body. She further alleged that on account of the failure of the employés of the company to have a headlight on the engine, to blow the whistle, and to ring the bell 80 rods from said crossing, and to keep same ringing to the crossing, and by running the train at a dangerous rate of speed, the deceased had no notice of its approach, and thereby, and by these means, was negligently killed.

The defendant admitted that the deceased was killed while crossing its track at a public crossing, but denied that he was using the highway in a careful and prudent manner at the time, and denied that its employés were guilty of the negligent acts charged at the time, and alleged specifically that the train was not being run at an excessive rate of speed; that the electric headlight was burning brightly; that the whistle was blown, as required by law, and denied that deceased was traveling from south to north across the track, and denied that deceased was keeping a reasonably careful lookout to preserve his life; that the track is clear and open both on the north and south sides, and that the train could be seen approaching for a long distance from said crossing.

The cause was submitted to a jury, and a verdict for plaintiff for $3,000 rendered, from which this appeal has been perfected.

The first assignment charges that the verdict of the jury is contrary to the evidence, and the evidence is at variance with the allegations in the pleadings, in that the petition alleged that the deceased was attempting to cross defendant's railway track going from south to north, and the overwhelming testimony was that he was coming from the north, crossing to the south. There is no merit in this assignment. The rules of practice in civil cases are not so rigid as contended for by appellants. They are framed with the object in view that no person liable shall escape liability, if the...