Weatherford, M. W. & N. W. Ry. Co. v. Crutcher

• Court: Texas Court of Appeals
• Writing for the Court: Key
• Citation: Weatherford, M. W. & N. W. Ry. Co. v. Crutcher, 141 S.W. 137 (Tex. App. 1911)
• Decision Date: 15 November 1911
• Parties: WEATHERFORD, M. W. & N. W. RY. CO. v. CRUTCHER et al.

141 S.W. 137

WEATHERFORD, M. W. & N. W. RY. CO. v. CRUTCHER et al.

Court of Civil Appeals of Texas. Austin.

November 15, 1911.

Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.

Action by Mrs. Mattie Crutcher and another against the Weatherford, Mineral Wells & Northwestern Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

H. C. Shropshire, for appellant. Capps, Cantey, Hanger & Short and Albert Stevenson, for appellees.

KEY, C. J.

This is a personal injury suit brought by Mrs. Mattie Crutcher and her husband against appellant for injuries sustained by Mrs. Crutcher, which resulted in a verdict and judgment for the plaintiffs for $1,500, and the defendant has appealed.

The first assignment is addressed to the action of the court in refusing a requested instruction directing the jury to return a verdict for the defendant. Under that assignment, appellant urges two propositions, which are: First, that the act of appellant's servants in pulling down the trolley wire was not within the scope of the authority of said servants, and therefore appellant is not responsible for the act of its servants in that regard; and, second, that the damages claimed by appellees are too remote and speculative, and appellant or its servants were not required to foresee or anticipate the injuries which it is alleged Mrs. Crutcher sustained. The trial court submitted both of those questions to the jury, and required a finding in appellees' favor thereon in order for her to recover. The testimony relating to these two questions is set out as follows in appellant's brief:

"Mrs. Mattie Crutcher, for plaintiffs, testified: At the time of the injuries alleged I was residing in Mineral Wells, Tex., and was there engaged in the real estate business as an agent, and was driving out with a gentleman to show him a piece of property in Mineral Wells, going west on Hubbard street. When we had gotten within 25 feet of the railroad crossing on that street, there was a freight train standing at the crossing, and some one on the train was throwing something up over a trolley car wire, which also extends along that street east and west. The man attempting to do so was standing upon a box car which was about the center of the string of cars in the train. After he threw this something over the trolley, the man then signaled the engineer to pull out, and I then realized what they were attempting to do, but did not previously know, and had no notice of their intentions. The train, having started, pulled at the wire until it broke and went like a cannon and came towards me with a lightning flash, and the first I knew I was out of the buggy, but do not know how I got out, as I then began to tremble and shake and could not control myself. Mr. Sizer, a man in the buggy with me, also had got out. The trolley wire had been placed there by the street car people and was being operated at the time in question, and the man on the car was in the act of throwing the chain or rope over the wire just as I drove up there, intending to pass the crossing and continue along the street. I know I hollowed and screamed at him to let me go by, but he did not pay any attention to me. I did not realize what he was going to do. I saw that they were going to break the wire, and that if it hit me it would kill me, and I screamed at him to stop; but they went on pulling the wire down. When the wire broke, it fell or flew back toward me, and the whole street was in a blaze of fire, and when I saw it coming towards me I got dazed, and I did not know anything until I got out of the buggy on the ground. I do not know how near the broken wire came to me; it was on the ground when I saw it. At the time I was within 25 feet of the railway track, and between the first guy wire and the track of the railway which runs north and south across Hubbard street, which is east and west. Hubbard street is one of the main streets of Mineral Wells. When I saw that they were breaking the trolley wire, I then realized that there was danger, if they broke it. I then had no opportunity to get away. I know that at the time I screamed and hollowed I was not more than 20 or 25 feet from the men who were throwing the chain over the wire. When I stopped there I had no idea they were going to break the wire, and did not know what they were doing and had no warning from the men on the train nor from any one else. Even after they started the train, I had no opportunity to get away with my horse and buggy, further than to get over to the sidewalk on the street where I was. The gentleman in the buggy had the chance to get the buggy from the middle of the street. I do not remember at all about getting out of the buggy, or whether or not some one pulled me out; but it relaxed me when I got on my feet. Just then they all got to work and got the wheels of my buggy and turned the buggy around. I think Mr. Sizer had hold of the horse, and when we stopped we were in front of the Imperial Hotel. After this I drove back to my rooms, to the house where I lived, and sent the horse and buggy back to the stable. Mr. Sizer and myself had started from the Beeler House after supper on the day of the accident and drove first to the post office. Returning towards Hubbard street, we then drove in the direction of the railroad crossing, a distance of a block and a half or two blocks from the Turner drug store corner. When I first discovered what the trainmen were going to do, I was between the first guy wire and the Cogsdell gate east of the railroad track and was driving in a slow gait or in a walk. I was doing the driving; Mr. Sizer being on the south side of the buggy as we went west. The horse was gentle and would not scare at a train, and we drove up to within 20 or 25 feet of the train and was that close to it before I saw the train. We stopped immediately, as the train was at the time standing across the street crossing; the horse's head being not exceeding 25 feet from the crossing. The train was stopping as I drove up, or was stopping about the time I did. I did not turn around the street around the Oxford Hotel, either to the south or the north. I did not see the train as I turned into the corner at the Turner drug store, and not until I was a considerable distance down the street. I was not paying any particular attention to the train at any time, and did not see it until I was within 25 feet of it. I think it was too dark to have seen it much sooner than I did. I don't know how far I might have seen the train. The fact is I did not see it until I finally stopped the buggy as it was across the track. I could not have seen or distinguished a man any further than that. At the time I stopped my horse, I saw only two men, one of whom was on a box car of the train and the other on the engine, and the train was made up of one box car and two flat cars; one of the flat cars being next to the engine. The trolley wire runs east and west in the middle of Hubbard street, and the box car mentioned was right under the trolley. To the north of the box car there were the flat cars and engine; the engine fronting north. I saw no men there at all except the two on the train, and do not remember to have seen any at all on the ground. Only one man got off the car at the time, and he was the one that got the rope or chain that he threw over the trolley wire. I do not know where he got it, as he was in the act of throwing it over the wire when I stopped my buggy. As he did so, he was standing on top of the box car and almost immediately pulled the wire down after he had fastened the chain to something on one of the cars. This whole proceeding was not more than seven or eight minutes altogether, or might have been just a few minutes. The man who tied the chain over the wire was between me and the train when he gave the engineer the signal to start and was directly in front of me at the time. He said nothing either to me or to the man in the buggy with me, and we did nothing more than turn the horse from near the middle of the street over to the sidewalk. This was done by Mr. Sizer, the man in the buggy with me. There was no time to turn the horse and buggy and go back the other way before the wire broke, and it would have been dangerous to have done so after the breaking and falling of the wire. The wire broke about halfway from where we were standing in the buggy to the railroad track, and just after the break Mr. Sizer got out of the buggy to the ground. I did not know which way to go, and did not get out until after the wire was held down on the ground with something. There was at no time during all this proceeding that any one of the men at the train came to me and told me what they were preparing to do, and did not tell us to turn and go back, nor take my horse and lead it over to the sidewalk, and there was nothing said at any time about the horse being scary or not. At this time the broken wire was right at the wheels of the buggy on the ground.

"Ed Burdg, witness for appellant, testified: In 1907 I was working for the defendant company as conductor in charge of a construction train, laying steel on its extension north from Mineral Wells. I am not now employed. At the time of the accident in question I was coming into Mineral Wells from the work some miles north of the town, and at about dusk reached the street crossing on Hubbard street with my train, which consisted of the caboose, water car, and four or five flat cars. As we approached the crossing I was standing on top of the caboose in company with Irby Russell, a brakeman on the train. The train was backing into town and across Hubbard street crossing; the engine being to the north and the caboose to the south as we came into town. We had gone north out of Mineral Wells the night before this as was our custom, and during the day of the accident the street car company had strung up and put up a trolley wire,...