Tisdale v. Panhandle & S. F. Ry. Co.

• Decision Date: 02 March 1921
• Docket Number: (No. 206-3295.)
• Citation: 228 S.W. 133
• Parties: TISDALE et al. v. PANHANDLE & S. F. RY. CO.
• Court: Texas Supreme Court

Page 133

228 S.W. 133

TISDALE et al. v. PANHANDLE & S. F. RY. CO.

(No. 206-3295.)

Commission of Appeals of Texas, Section B.

March 2, 1921.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by Mrs. Martha A. Tisdale and another, on behalf of themselves and others, against the Panhandle & Sante Fé Railway. Company. Judgment for plaintiffs was reversed by the Court of Civil Appeals (199 S. W. 347), and the plaintiffs bring error. Judgment of the Court of Civil Appeals affirmed, and cause remanded to the district court for further proceedings.

Kimbrough, Underwood & Jackson, of Amarillo, and Chas. C. Cook, of Pampa, for plaintiffs in error.

Terry, Cavin & Mills, of Galveston, and Hoover & Dial and H. E. Hoover, all of Canadian, for defendant in error.

POWELL, J.

This is an action in damages, instituted in the district court of Gray county, Tex., by Martha A. Tisdale and May Bell Tisdale, for themselves and others, against the Panhandle & Santa Fé Railway Company, for the alleged negligent killing of C. R. Tisdale by said railway company on a public crossing near the depot in the town of Pampa on the 15th day of June, 1915. Plaintiffs alleged three grounds of negligence on the part of said railway company in the killing of the said C. R. Tisdale as follows: (1) Failure to keep a watchman at the crossing; (2) pushing the train over the crossing without having any one stationed on the east (rear) end of the caboose while said train was being backed over the crossing; (3) pushing the train rapidly and hurriedly from a point a short distance from said crossing over the same, without blowing the whistle or ringing the bell.

Defendant answered by general and special exceptions, general denial, and pleas of contributory negligence and assumed risk.

A trial was had before a jury, which, in response to a general charge of the court, returned a verdict in favor of Mrs. Martha A. Tisdale for $5,000 and May Bell Tisdale for $1,500. Judgment was entered accordingly.

Defendant in error perfected its appeal from said judgment, and presented various assignments of error in the Court of Civil Appeals. Said court overruled all of the assignments of error, except those which attacked the action of the trial court in submitting to the jury the issue of negligence on the part of defendant in failing to have a flagman or watchman at the public crossing where this accident occurred. The defendant in error contended that, as a matter of law, there was not sufficient evidence to warrant the court in submitting this issue to the jury, and this contention became the basis of two assignments of error, which the Court of Civil Appeals sustained, and reversed the judgment of the trial court, and remanded the cause. See 199 S. W. 347.

The sole question for determination in this connection by this court is whether or not the trial court erred in submitting the aforesaid issue to the jury. There was no objection to the form of the charge used by the trial court in doing so. It was in the usual form, the court asking the jury to determine whether or not an ordinarily prudent person, under the same or similar circumstances, would have provided a flagman at said crossing.

Were the facts in this case sufficient to raise said issue and require its submission to the jury? The relevant facts, as found by the Court of Civil Appeals, are:

"It appears that prior to the accident Tisdale, accompanied by R. P. Porter, in the former's buggy, was driving south on a main street of the town of Pampa, with the intention of crossing appellant's line of railway. It appears that there was north of the main line what is known as the house track, which left the main line several hundred feet west of the place of the accident, and ended at the west line of the street along which Tisdale and Porter were traveling; that there was one car loaded with ice, and possibly others, standing on the house track. This track was about 30 feet north of the main track. It is clear that after passing south beyond the car standing on the end of the house track the view of the main track toward the west was further obstructed by a temporary depot, situated on the north side of the main track. This depot was a box car, without the wheels, resting upon supports near the main track. Besides the house track, northwest of the temporary passenger depot, at a distance not shown by the testimony, was another old box car, which was used as a freight depot. If the map attached to the statement of facts correctly shows the location of the ice car and the two old box cars used for passenger and freight depots respectively, appellant's insistence that deceased was guilty of contributory negligence as a matter of law cannot be sustained. It appears from the evidence that the train which caused the death of Tisdale was a work train; that it came backing into Pampa from some point west of the town, and had pulled in on what is known as the passing track, some six feet south of the main line, in order that a through freight train which had already whistled for the station might have the right of way over the main track."

Again:

"The court, in a general charge, submitted to the jury the issue as to whether or not the appellant was negligent in failing to keep a watchman at the crossing where the accident occurred. The evidence upon this issue was uncontroverted to the effect that no watchman or flagman was kept there. Several witnesses testified to facts bearing upon this issue, showing that Pampa was a town of from 500 to 1,500 people, that the crossing was frequently used by the public, and that there was considerable traffic over it during the season of the year in which the accident occurred. It was shown that there were no factories or anything else that would make an unusual noise in the neighborhood of the crossing, and nothing that would keep a person from hearing the movement of freight trains. One witness testified that he had lived at Pampa a great many years, and that the principal noise to be heard in the town was the movement of trains."

Again, in the opinion on rehearing:

"We find that the street upon which the accident occurred was the main crossing of the railroad in the town of Pampa; that it was the main business street; that as shown by the map in evidence the accident occurred 210 feet east of Hobart's office on the main street; that after leaving Hobart's office, going toward the main track, there was no obstruction until Tisdale reached the point in the street where the house track ended: that there were several cars on the house track, extending from the line of the street west; that, as shown by the map, it was 50 feet from the house track to the main line where the accident occurred. Between the house track and the main line there was located a box car, about 60 feet west of the street; this box car was on the ground by the side of the main track, and was used as a temporary depot; further west, 50 feet, and near the house track, was another old box car used for a freight depot; 600 feet west of the street, and located between the house track and the main track, was a wellhouse and pumphouse; that the crossing was used by the town people and by the rural population living 15 or 20 miles southward and eastward from the crossing; that such farming population averaged about one family to each section of land; that at the time of the accident the wheat harvest was on, when travel was most active over the crossing; that there was a considerable transient population in the town at that time; that several buildings were in progress in the town, amongst them a new depot for the appellant; that at the time of the accident work on the depot had been stopped. Appellant's employees operating the train knew that the crossing was an important one, and that at times there was heavy traffic over it."

It is admitted that at the time of this accident there was no statute or city ordinance requiring defendant in error to maintain a flagman at this crossing.

The rule of law applicable to the determination of the issue now before this court has been well stated, as follows:

"In order to raise the issue whether the railway company is guilty of negligence in failing to station a watchman at a public crossing, it is not necessary to show that persons about to use the crossing are prevented from discovering the approach of trains by permanent obstructions, as appellant seems to contend. If the location of the crossing and the conditions surrounding it, together with the switching of cars and the operation of its trains by the company, rendered the same unusually hazardous, then it was a question of fact for the determination of the jury whether the company in the exercise of reasonable care should have stationed a watchman at the crossing." M K. & T. Ry. Co. v. Hurdle, 142 S. W. 992 (writ of error denied by the Supreme Court).

The opinion above quoted was justified by a former opinion of the Supreme Court of Texas, in which Judge Brown used the following language:

"The court charged the jury, in effect, that if a person of ordinary prudence would, under all the circumstances, have kept a flagman or watchman at the crossing where the plaintiff was injured, then the failure on the part of the railroad company to keep such flagman or watchman was negligence. It is objected to this charge that the law does not require a railroad company to keep a watchman or flagman at crossings on public highways, and that, if the train itself is properly managed, there can be no liability on the part of the railroad company; that it is not required to provide a person to notify travelers upon the public highway of the approach of its trains. There is a conflict of authority upon this question, but the weight of authority and sound reasoning sustains the charge given by the court." M., K. & T. Ry. Co. v. Magee, 92 Tex. 616, 50 S. W. 1013.

Judge Brown, in the opinion...