Wichita Falls, R. & F. W. Ry. Co. v. Crawford

• Decision Date: 07 June 1929
• Docket Number: (No. 587.)
• Citation: 19 S.W.2d 166
• Parties: WICHITA FALLS, R. & F. W. RY. CO. v. CRAWFORD et al.
• Court: Texas Court of Appeals

Page 166

19 S.W.2d 166

WICHITA FALLS, R. & F. W. RY. CO. v. CRAWFORD et al.

(No. 587.)

Court of Civil Appeals of Texas. Eastland.

June 7, 1929.

Rehearing Denied July 12, 1929.

Appeal from District Court, Eastland County; Elzo Been, Judge.

Action by Mrs. N. A. Crawford, Etura Crawford and others against the Wichita Falls, Ranger & Fort Worth Railway Company. From a judgment for named plaintiffs, defendant appeals. Affirmed conditionally.

Conner & McRae, G. G. Hazel, and H. E. McRae, all of Eastland, for appellant.

Grisham Bros., of Eastland, for appellees.

HICKMAN, C. J.

The appeal is from a judgment in favor of appellees Mrs. N. A. Crawford and Etura Crawford against appellant for the death of W. W. Crawford, who died of injuries received on account of the alleged negligence of appellant. The suit was by Mrs. N. A. Crawford, surviving widow of W. W. Crawford, and a number of their children. Only one of the children, Etura Crawford, an unmarried daughter, was awarded any damages. The other children have not appealed, and the case before us involves only the judgment in favor of Mrs. Crawford and Etura Crawford.

W. W. Crawford was struck by the rear of a train, backing on appellant's house track between Hunt street and Clay street in the city of Ranger. Appellant maintained three tracks between these streets—the passing track on the east, the house track on the west, and the main track between the two. The house track joined the main track at a switch near the intersection of the main track with Clay street.

The case was tried before a jury on special issues. The acts of negligence found by the jury were: (1) The failure of appellant to ring the bell at the time and before the train struck deceased; (2) the failure of appellant to have an operator on the fireman's side of the engine at the time deceased was struck by the train; (3) the failure of appellant to have a brakeman on the rear of the train at the time it struck deceased; and (4) the failure of appellant to keep a lookout for pedestrians at the time and place deceased was struck by the train. Each of these acts of negligence was found to be the proximate cause of the death of the deceased.

Further findings of the jury in answer to the issues submitted in the main charge were that the place where deceased was struck was commonly used by pedestrians with the knowledge of appellant, and that the deceased, in traveling upon the place in question when struck by said train, used such care for his personal safety as a person of ordinary prudence would have used under similar circumstances. Certain special issues were submitted at the request of appellant, which will be noticed later.

Appellant's brief contains thirty-eight propositions, based upon an equal number of assignments of error. To single out these propositions and discuss them separately would unduly lengthen this opinion. We have considered each of them, and the views hereinafter expressed cover each question of law presented by the propositions.

G. J. Moore, a former employee of appellant, testified as a witness for appellees that he was familiar with the rules of the railroad company with reference to the operation of trains on the tracks where Crawford was killed. According to his testimony, the rules provided that there should be four men in attendance upon a train being operated as was the train which struck deceased; the fireman, engineer, head brakeman, and hind brakeman. The head brakeman should have been riding the back end of the cars while the train was being switched. The hind brakeman should have been at the crossing on Hunt street to protect the traffic. It was the duty of the head brakeman, in riding the back end of the cars, to keep a lookout while the switching was going on. The engineer was supposed to be working from signals received from the brakeman. The fireman was supposed to be looking for signals and ringing the bell. It was his duty to ring the bell constantly while moving the train. Appellant objected to all of this testimony on the ground that same was irrelevant, immaterial, prejudicial, and unauthorized by the pleadings, and on the further ground that it did not appear that any duty rested upon appellant to maintain the rules and regulations with reference to the operation of its train. The action of the trial court in overruling these objections and admitting the evidence is assigned as error. We overrule this assignment.

It is well settled by many decisions in this state that rules promulgated by a railroad company for the government of its employees in operating its trains are admissible as facts bearing on the question of negligence vel non. The violation of these rules does not constitute negligence per se, as does the violation of a statute, but the rules are admissible in evidence as being in the nature of admissions by the railroad company. Galveston, H. & S. A. R. Co. v. Pingenot (Tex. Civ. App.) 142 S. W. 93; Texas Traction Co. v. Hanson (Tex. Civ. App.) 143 S. W. 214; Texas & P. R. Co. v. Hilgartner (Tex. Civ. App.) 149 S. W. 1091; Barron v. Ry. (Tex. Com. App.) 249 S. W. 825; Galveston, H. & S. A. R. Co. v. Tapley (Tex. Civ. App.) 268 S. W. 491.

By appropriate assignments and propositions, appellant challenges the sufficiency of the evidence to support the various issues submitted to the jury and above referred to. To discuss these assignments would be merely to copy into the opinion excerpts from the testimony. The appellant offered no witnesses. There was positive and direct testimony from witnesses offered by appellee in support of each of the issues submitted, and to copy this testimony into the opinion would be useless. All assignments challenging the sufficiency of the evidence to support the answers of the jury to the several issues submitted in the court's main charge are overruled.

It is urged at length in appellant's brief that the deceased was guilty of contributory negligence as a matter of law, and that for that reason the court erred in refusing to peremptorily instruct the jury at appellant's request to return a verdict that appellees take nothing.

This court has had occasion very recently, in the case of Fort Worth & Rio Grande Ry. Co. v. Sageser et al., 18 S.W.(2d) 246, to consider the question of contributory negligence as a matter of law. The facts of that case strongly pointed to the conclusion that the deceased exercised no care for his own safety. As indicated by the opinion in that case, we considered many authorities on the question and came to the conclusion that it was impossible to state any general rule by which the acts of an injured party may be determined to constitute negligence as a matter of law, and that it would be impossible to formulate such a rule, because there is no authority possessed with the power or knowledge to anticipate in advance what quality of human conduct should be condemned as negligent or prudent. A single act or circumstance, seemingly of no consequence when considered alone, may, when considered in connection with all the other facts and circumstances surrounding the injury, be decisive of the issue and make all of the acts constitute negligence as a matter of law, or, on the other hand, create a situation where reasonable minds could properly differ in their conclusion.

In the instant case, the facts show that the deceased frequently was upon appellant's premises; that he had formerly been an employee of appellant. The idea is not excluded that he was familiar with the appellant's rules and with the customary way of operating switch trains. He was traveling south on the occasion of the injury, and shortly before he was struck he met the train going north on the main track. This train switched onto the house track and came upon the deceased from the rear. There is no showing that he had any knowledge that the train had reversed its direction and been switched over to the other track. Viewing the situation as a whole we would not be authorized to hold, as a matter of law, that the deceased was guilty of contributory negligence. A large number of the leading authorities on this question are cited by us in the Sageser Case, and we here refer to such authorities without again citing them.

An unusual situation is presented by the answers of the jury to special issues submitted by the court at the request of appellant. The first of these issues called upon the jury to answer whether the deceased looked for the approach of appellant's train just prior to the time he stepped upon the track upon or near which he was killed. The other issue was the same, except that it called for an answer as to whether deceased listened for the approach of the train. Each of these issues was answered by the jury in the affirmative. The issue of whether or not these acts constituted negligence was not requested or submitted. With reference to these issues and the answers thereto, appellant assumes two positions in its brief. It is contended in the first place that the trial court should have rendered judgment in favor of appellant, based upon the answers to these issues, and it is contended also that such answers should be set aside and disregarded because they were without any evidence to support them. The contention that judgment should have been rendered in favor of appellant upon the answers to these issues is not sustained. No greater effect could be given to the answers to these questions than that they were in conflict with the answer to the issue as to whether deceased was guilty of contributory negligence. If they were, as a matter of law, in conflict with the other answer, a mistrial should have been ordered. But, when the facts and general situation are considered, we do not think any necessary conflict exists. The deceased might have both seen and heard the train, which he undoubtedly did, just before he stepped upon the end of the ties, and still not have known that it had switched over to...