Trinity & B. V. Ry. Co. v. Simpson

• Decision Date: 08 April 1905
• Citation: 86 S.W. 1034
• Parties: TRINITY & B. V. RY. CO. v. SIMPSON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

86 S.W. 1034

TRINITY & B. V. RY. CO. v. SIMPSON.^*

Court of Civil Appeals of Texas.

April 8, 1905.

Additional Opinion, April 29, 1905.

Appeal from District Court, Hill County; Nelson Phillips, Judge.

Action by O. M. Simpson against the Trinity & Brazos Valley Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Andrews, Ball & Streetman and Wear, Morrow & Smithdeal, for appellant. J. E. Clarke and Clarke & Hart, for appellee.

BOOKHOUT, J.

This is an action for personal injuries, brought by O. M. Simpson against the Trinity & Brazos Valley Railway Company. Trial before a jury resulted in a verdict for appellee, Simpson, on which judgment against the appellant was rendered. Motion for a new trial was made by appellant, and overruled. The Trinity & Brazos Valley Railway Company appealed.

Conclusions of Fact.

Appellee, O. M. Simpson, was injured on the 10th day of December, 1903, in a collision between a train belonging to appellant, and operated by its agents and employés in the city of Hillsboro, and a railroad velocipede upon which the appellee was at the time riding. At the time appellant had in operation a railroad from Hillsboro to Mexia. The Southern Construction Company was constructing a railroad for appellant north through Hillsboro and Hill county, and was operating a steam shovel about two miles north of Hillsboro. Appellee was employed by said construction company as night fireman for said steam shovel. He had been provided with a railroad velocipede by said construction company to go to and from his work, and was on his way to work when he was injured.

Appellee and other employés of said construction company had made use of appellant's track upon which to travel with a railroad velocipede to and from their work a sufficient length of time to charge appellant and its agents with knowledge of such use, and no objection was made by appellant or its agents to such use of its tracks. The appellant and its agents acquiesced in such use of its tracks.

Appellee was on the velocipede going north on the railroad track at the rate of five or six miles per hour, and, while going around the curve in the track near the electric light plant and power house, was met by appellant's engine going south and pushing two box cars ahead of it, running at the rate of 10 miles per hour. Appellee did not see said train until it was within 20 feet of him, and too late to get off the track and out of danger. He attempted to do so, but failed, and was knocked off by the appellant's train and injured. There is an alley or street five or six feet north of the power house, which the railroad crosses. About 60 or 70 yards south of the power house the railroad crosses Franklin street, a public street of the city. Appellee was injured between Franklin street and the power house. By the ordinances of the city of Hillsboro, it is a penal offense to move locomotives in any direction within the city limits without ringing the engine bell, or to run a railroad engine at a greater rate of speed than six miles per hour within the city limits. The agents and employés of appellant operating the train gave no signal of the approach of said train at the time of and previous to the accident, nor was there any light on the front of said train, or, if there was, the same was so placed that it could not be seen by one upon the track as was appellee. Appellee had no light on his velocipede. Appellant was guilty of negligence in failing to ring the bell of its engine, or to give any signal of the approach of its train, and in failing to have a light on the front part of its train, and in operating its train at a greater rate of speed than six miles per hour in the corporate limits of the city of Hillsboro.

In deference to the verdict, we find appellee was not guilty of negligence in failing to have a light on his velocipede, and in failing to see appellant's train in time to get out of danger, and in operating his velocipede at five or six miles per hour. Nor was he at the time of the injury a trespasser upon appellant's track. Other facts appear in the opinion.

Conclusions of Law.

1. Appellant's first contention is in effect that the verdict of the jury is contrary to the evidence, and for this reason the trial judge erred in overruling its motion for a new trial. This contention is disposed of by our conclusion of facts, holding that the evidence was sufficient to justify the verdict. Nor is the contention that the appellee was guilty of contributory negligence sustained. This issue was fairly submitted to the jury, and their finding that appellee was not guilty of contributory negligence is justified by the evidence.

2. Complaint is made of the action of the court in refusing the following special charge requested by appellant: "You are instructed that there is no...