Westbrook v. Texas & P. Ry. Co., 2586.

• Decision Date: 23 May 1947
• Docket Number: No. 2586.,2586.
• Citation: 203 S.W.2d 279
• Parties: WESTBROOK et ux. v. TEXAS & P. RY. CO.
• Court: Texas Court of Appeals

203 S.W.2d 279

WESTBROOK et ux. v. TEXAS & P. RY. CO.

No. 2586.

Court of Civil Appeals of Texas. Eastland.

May 23, 1947.

Rehearing Denied June 20, 1947.

Appeal from District Court, Taylor County; J. R. Black, Judge.

Action by W. R. Westbrook and wife against the Texas & Pacific Railway Company, to recover for the wrongful death of plaintiffs' two-year-old child. From the action of the trial court in withdrawing the case from the jury and rendering judgment for defendant, plaintiffs appeal.

Affirmed.

Smith & Smith, of Anson, for appellants.

Wagstaff, Harwell, Wagstaff & Alvis, of Abilene, for appellee.

GRAY, Justice.

Appellants W. R. Westbrook and wife, sued appellee, Texas & Pacific Railway Co., for the alleged killing of their two year old child by one of appellee's passenger trains on or about April 14, 1943. The fatal accident occurred about two and a half or three miles west of the section station at Tye. W. R. Westbrook was employed as a section hand by appellee and a Mr. Reeves was his foreman. The railroad track ran in an east and west direction from Tye to near the scene of the accident. On the north side of the right-of-way was Highway 80, which was intersected by a public road crossing the track and extending on south to Camp Barkeley. Appellants lived in a small house about 78 yards south of the railroad and about 60 feet east of said Camp Barkeley road. A picture in evidence and admittedly correct, showed that at about the place of the accident, the railroad track curved to the northwest rather sharply and into a draw. The train which killed said child was an eastbound troop train. No eye witness to the tragedy testified.

Plaintiffs pleaded a number of specific acts of negligence by defendant: (a) That said train at the time was being operated at an excessive rate of speed; (b) that the whistle was not blown for the crossing, nor the bell rung; (c) failure to keep a proper lookout; (d) failure to use all means at the command of the train crew to stop the train after discovering said child standing or being too near the track; (e) failure to discover the peril which said child was in; (f) pleaded that the track was straight, smooth and level for 900 or 1000 yards to the west of the scene of the accident; (g) failure to apply the brakes in time to prevent the accident; (h) conditionally pleaded that if the train crew discovered said child at or near the track, they were guilty of negligence in not ringing the bell, blowing the whistle and giving an alarm, and in failing to apply the brakes and to use all means at their command to stop the train; (i) if said train was not equipped with proper brakes and stopping equipment so that it might be stopped within 900 feet, then defendant was guilty of gross negligence in such matter; (j) that operating said train at such excessive rate of speed was unlawful and dangerous and showed lack of control: that all of said acts of negligence and carelessness, and each of them constituted proximate cause of the accident. Plaintiffs further pleaded that the prior settlement and release was obtained through false and fraudulent promises of employment by defendant's agents, with no intent to perform the same, and without performing same.

Defendant pleaded general denial; that said child was at said time and place a trespasser and had no right to be there, and that the operators of the train had no expectation that the child would be there; that such place was not a public or private crossing; that said right-of-way at said place was enclosed with a barbed wire fence of five wires; that plaintiffs were guilty of negligence in permitting said child to be on said right-of-way and tracks at said time and place, and were guilty of contributory negligence in not keeping a proper lookout for said child, and in not keeping it off of the railroad tracks, all of which acts, singularly and collectively, were direct and proximate causes of the accident. Defendant further pleaded that said train was a troop train of seventeen coaches, and that in approaching from the west to the place of the accident, it came out of a draw and up a grade and through a cut in the embankments and on a curve, and the operators of said train in the exercise of ordinary care, could not see said child on or about the railroad tracks where he was, and had no right to be, and was not expected to be, until such train was in such close proximity that in the exercise of ordinary care and with safety to the equipment and passengers on the train, the operators of same could not have stopped the train in time to have avoided the accident, and that same was an unavoidable accident. Defendants further pleaded said settlement, payment and release and the provisions of same, accord and satisfaction, and estoppel.

Plaintiffs testified in their own behalf, and without calling any other witness, rested their case. Thereupon, defendant filed its motion for an instructed verdict in its favor, setting out grounds therefor. The court withdrew said case from the jury and rendered judgment for defendant, to which action of the court, plaintiffs excepted and gave the customary notice of appeal.

Appellants allege error on the part of the trial court in not submitting said case to the jury, and in rendering judgment for appellee. We think that there are two controlling issues in the appeal, viz.: (a) Whether appellants produced sufficient evidence of negligence by appellee and proximate cause to warrant submission of said issues to the jury; (b) whether there was sufficient evidence of fraud by the agents of appellee in inducing said settlement agreement to present a jury question; and (c) the minor question as to whether the rule of res ipsa loquitur should be applied to this case.

On the issue of negligence, there was no evidence whatever as to the rate of speed at which said train was being operated at said time and place, nor as to what would constitute an unlawful or excessive rate of speed. From the picture in evidence, it is clear that immediately before reaching said public road crossing and the point where the accident occurred, the train was coming upgrade, which would probably have the speed at which it had been traveling. As to whether before approaching said crossing, the whistle was blown and the bell rung, we must look solely to the testimony of Mrs. Westbrook, who testified that she was sitting on her front porch engaged in sewing: that she did not hear either whistle or bell, and that had they been sounded, she would have heard them. But a week after the accident, Mrs. Westbrook made a written statement from which we quote:

"On April 14, 1943, it was only ten or fifteen minutes before the accident occurred that my two sons were in the house with me watching me do some embroidery work. I laid down on the bed and do not think that I dropped off to sleep. I heard the children go out of the house, that is, heard the bicycle screech, also, the wagon wheels as they were playing around the house. I did not hear the train going by the house in which I live, and which is about 500 feet south of the railroad track. The first I knew of the accident was when some member of the train crew came to my home and told me of the accident. I was just fixing to get up from the bed to see where the children were when the man came to the door. He said, `your child has been struck by the train.' I then went down to the track and saw the child."

Mrs. Westbrook admits that said statement was read to her before she signed it, and was made immediately after the accident, while the oral testimony was given about three and a half years afterward. The statement strongly indicates that Mrs. Westbrook may have been asleep at the time. This view finds support in the fact that she did not even hear the train. It contradicts her oral testimony. The evidence shows that there was a whistling post about 80 rods west of said public road crossing, and it might more plausibly be assumed that the operators of the train did their duty than that they were willfully negligent. But for the purpose of this discussion, we may assume that no alarm was given. Then appellants had the burden of establishing by competent evidence a causal connection between such negligence and the fatal accident. It is not enough merely to prove negligence on the part of the wrongdoer. The complainant must go farther and prove proximate cause. Here again, the record is silent as to direct proof, or as to circumstantial evidence sufficient to support a finding of proximate cause. Furthermore, there is no evidence as to the alleged failure of the operators of said train to keep a proper lookout. Neither of the witnesses saw the train in motion before the accident and were, therefore, unable to testify to any act of omission on the part of the train crew. The same may be said as to discovered peril. As has been said above, said train was coming out of a draw, around a curve and through a cut which obscured the view of the trainmen until they neared the public road crossing and the point of the accident. The record is silent as to when the operators of the train first discovered said children on the track or right-of-way. But the evidence did show that about half of the train extended east of the point of the accident and half of it west of said point, which indicated a quick stopping of the train, and that the operators thereof used all means at their command to do so. There was likewise no proof as to the defectiveness of the brakes, but the quick and effective stop of the train negatives the allegation that the brakes were not in good condition. We have searched the record for evidence as to negligence and proximate cause on the part of the operators of said train such as would present a jury question or support a judgment, but have found none.

A case similar in many respects to the case at bar is Campos v. St. Louis B. & M. R. Co., Tex.Civ.App., 43 S.W.2d...