Webester v. Henwood

• Decision Date: 09 November 1939
• Docket Number: No. 2159.,2159.
• Parties: WEBESTER et al. v. HENWOOD.
• Court: Texas Court of Appeals

134 S.W.2d 333

WEBESTER et al. v. HENWOOD.

No. 2159.

Court of Civil Appeals of Texas. Waco.

November 9, 1939.

Rehearing Denied December 14, 1939.

Error from District Court, Navarro County; Wayne R. Howell, Judge.

Suit by Montee Webester, for herself and as next friend for her minor children, against Berryman Henwood, trustee of the St. Louis Southwestern Railway Company of Texas, debtor, for damages for injuries resulting in the death of Lorenzo Webester, who was the husband of Montee Webester and the father of her minor children. To review a judgment on a verdict instructed for the defendant, the plaintiffs bring error.

Affirmed.

J. S. Callicutt, of Corsicana, for plaintiff in error.

Richard & A. P. Mays, of Corsicana, and Ramey, Calhoun & Marsh, of Tyler, for defendant in error.

ALEXANDER, Justice.

This suit was brought by Montee Webester for herself and as next friend for her minor children against Berryman Henwood, trustee of St. Louis Southwestern Railway Company of Texas, for damages for injuries resulting in the death of Lorenzo Webester, who was the husband of Montee Webester and father of her minor children. At the conclusion of the evidence the court instructed a verdict in favor of the defendant. The plaintiffs have appealed.

The plaintiffs assign as error the ruling of the court in instructing a verdict for the defendant. The plaintiffs alleged that while the deceased was attempting to cross the defendant's track at a public crossing in the city of Corsicana, the defendant's servants in charge of one of its switch engines negligently operated said switch engine at a high rate of speed across a public crossing without keeping a proper lookout and without giving any warning of the approach thereof, and, as a consequence, said Lorenzo Webester was struck and injured, and that he later died from his injuries. There was evidence that the said Lorenzo Webester left home on the morning of August 29, 1936, to go to his farm. The record does not make it clear but we presume he was walking. He had to cross the railroad track enroute. John Washington, who lived near the railroad track where it crossed 3rd street in the city of Corsicana, testified that he got up about five o'clock that morning. It was dark at that time. While he was up he saw the lights and heard the roar of a switch engine as it crossed 3rd street. When the engine was about even with the front of his house, he heard the voices of two or three men. They said, "Hey, hey, hey." He went back to bed and shortly thereafter a man with a lantern in his hand and dressed as a railroad man came to his, Washington's, door and said: "There was a man knocked in the head." Witness then went out and found Lorenzo Webester in the street, about four feet from the railroad track. He had a gash on the right side of his head and some soot or smut, described as being "like engine smut," on the shoulder of his shirt. Witness asked the injured man how he had received his injuries but received no reply. He helped to carry Webester into his house and called a doctor. He found some blood on one of the cross-ties. Later, the injured man was removed to the hospital. Witness did not hear any whistle or bell. John Washington's wife testified that the roar of the engine and the voices of the men awoke her. She corroborated her husband in most particulars. None of the railroad employees testified and no one else undertook to describe the manner in which Webester received his injuries. Webester was released from the hospital but later contracted tuberculosis, possibly as a result of his injuries, and died in September 1937.

There was no evidence whatever o sustain plaintiffs' charge that the switch engine in question was being operated at an...