Wichita Falls, R. & Ft. W. Ry. Co. v. Emberlin.

• Decision Date: 23 June 1923
• Docket Number: (No. 10322.)
• Citation: 255 S.W. 796
• Parties: WICHITA FALLS, R. & FT. W. RY. CO. et al. v. EMBERLIN.
• Court: Texas Court of Appeals

255 S.W. 796

WICHITA FALLS, R. & FT. W. RY. CO. et al. v. EMBERLIN.

(No. 10322.)

Court of Civil Appeals of Texas. Fort Worth.

June 23, 1923.

Rehearing Denied October 27, 1923.

Writ of Error Granted November 21, 1923.

Appeal from District Court, Stephens County; W. R. Ely, Judge.

Action by Mrs. Mattie Emberlin against the Wichita Falls, Ranger & Fort Worth Railway Company and others. From a judgment for plaintiff, the named defendant and another appeal, and defendant Fort Worth & Rio Grande Railway Company appeals from a judgment over against it in favor of the named defendant. Reversed and remanded for a new trial as between plaintiff and appellants.

Thompson, Barwise, Wharton & Hiner, Levy & Evans, and Goree, Odell & Allen, all of Fort Worth, and John F. Evans and McCartney, Foster & McGee, all of Breckenridge, for appellants.

W. C. Jackson and W. A. Shields, both of Breckenridge, and W. E. Martin, of Abilene, for appellee.

DUNKLIN, J.

The Wichita Falls, Ranger & Fort Worth Railway Company and the Fort Worth & Rio Grande Railway Company have appealed from a judgment rendered in favor of Mrs. Mattie Emberlin for $20,000 as damages for the death of her husband, R. L. Emberlin, which was alleged to have occurred as the result of the negligence of those two defendants, and the Fort Worth & Rio Grande Railway Company has also appealed from a judgment over against it in favor of its codefendant, Wichita Falls, Ranger & Fort Worth Railway Company, for all sums that the latter company may be compelled to pay in satisfaction of the amount awarded to the plaintiff.

The Fort Worth & Rio Grande Railway Company owns and operates a railway line from the city of Fort Worth to the town of Dublin and the Wichita Falls, Ranger & Fort Worth Railway Company owns and operates a line of railway from Dublin to and through the town of Breckenridge. The St. Louis, San Francisco & Texas Railway Company was also made a defendant, but judgment was rendered in its favor, and, as no complaint is made of that judgment, that company will not be further noticed in this opinion.

It was alleged in plaintiff's petition that there was some arrangement between all three of the defendants under and by virtue of which the operatives of the trains over the Wichita Falls, Ranger & Fort Worth Railway Company from Dublin to Breckenridge were the agents and servants of each and all of the defendants; that such arrangement was unknown to the plaintiff, but was well known to the defendants, and they were given notice to produce upon the trial of the case the written contract showing the nature of such agreement.

At the railway passenger station in the town of Breckenridge a board walk about 5 feet wide was constructed, running lengthwise with the railway track, and on the east side of the east rail, about 20 inches from that rail. That walk constituted a part of the passenger platform, although the surface of the ground between that walk and the passenger station building about 30 feet distant was uncovered. At about 8 o'clock on the morning of February 3, 1921, a number of people had gathered at the station to await the incoming of a passenger train from Dublin, and were standing on the board walk. Quite a number of trucks and automobiles were also standing alongside the track to the south of the board walk, from which direction the train approached. R. L. Emberlin was on the board walk, and when the train came in he was struck by the locomotive just as he was in the act of stepping on or over the east rail. He was struck by the pilot of the locomotive, and in falling he attempted to grab hold of the pilot, but was unable to do so, and fell to the ground alongside the east rail. In attempting to extricate himself from that position by getting up from the ground his head was struck either by one of the drive wheels of the locomotive or by the journal box of the rear truck of the tender, and he was killed.

In plaintiff's petition it was alleged that the death of Emberlin was proximately caused by the negligence of the defendants in failing to ring the bell of the engine and in failing to blow the whistle as the train approached the station. It was also alleged that the operatives of the train were guilty of negligence in failing to stop or check the speed of the locomotive after the operatives in charge of it had discovered Emberlin's peril, and that such negligence was also the proximate cause of his death. The defendants pleaded specially that Emberlin was guilty of negligence proximately contributing to his injury, which would defeat a recovery for his death, in failing to discover the approach of the train by looking or listening; that the train as it approached was in plain view of the deceased; that he should have known of such approach; and that he was guilty of negligence in walking into or in front of it when he knew, or by the exercise of ordinary care should have known, of its near approach to him.

The case was tried before a jury, and the following are the special issues submitted, with the findings of the jury thereon:

"1. Did the operatives of said locomotive on the occasion in question ring the bell of said locomotive as they ran said locomotive into the station at Breckenridge, Tex., within such distance from said station as to give the deceased notice of the approach of said locomotive? Ans. No.

"2. If you have answered the foregoing question in the negative, then state: State if such failure to ring the bell, if there was any such failure, was `negligence' as that term is herein defined? Ans. Yes.

"3. If you have answered the foregoing question in the affirmative, then answer: Was the failure to ring the bell the `proximate cause' of the death of the deceased? Ans. Yes.

"4. Did the operatives of said locomotive, on the occasion in question, blow the whistle of said locomotive as they ran the said locomotive into the station at Breckenridge, Tex., within such distance from said station as to give the deceased notice of the approach of said locomotive? Ans. No.

"5. If you have answered the foregoing question in the negative, then state: Was such failure to blow the whistle, if there was a failure to blow the whistle, `negligence' as that term is herein defined? Ans. Yes.

"6. Was the failure to blow the whistle, if you have found in answer to question No. 4 that the operatives of said locomotive did fail to blow said whistle, the `proximate cause' of the death of the deceased? Ans. Yes.

"7. Did the operatives of the locomotive, or either of them, at the time in question, see the deceased and know of his peril in time that they could, by the use of the means at hand, and with safety to the locomotive and train, have stopped the same in time to have avoided killing the deceased? Ans. Yes.

"8. If you have found, in answer to the foregoing question No. 7, that the operatives of the locomotive, or either of them, at the time in question, saw the deceased and knew of his peril in time that they could, by the use of the means at hand and with safety to the locomotive and train, have stopped the same in time to have avoided killing the deceased, then state whether or not such failure upon their part to so stop the train was negligence as that term has been defined herein? Ans. Yes.

"9. What amount of money, if paid now in cash, will reasonably compensate the plaintiff, Mrs. Mattie Emberlin, for the damages she has sustained, if any, occasioned by the death of her husband? Ans. $20,000."

The jury also found answers to the following requested issues:

"Special issues requested by the defendant, Fort Worth & Rio Grande Railway Company:

"At the time and place of said accident, were the operatives in charge of said train under the control and direction of the defendant Fort Worth & Rio Grande Railway Company? Ans. Yes.

"At the very time of the accident was the engineer, Vaughn, under the control and direction of the Fort Worth & Rio Grande Railway Company as to the method, means, and manner of his work at that time? Ans. Yes.

"Special issues requested by all the defendants:

"Did the deceased, R. L. Emberlin, on the occasion in question, without exercising ordinary care for his own safety, walk or step into or against any part of the approaching train? Ans. No.

"If you answer the above question, then state whether said act or acts of the deceased, R. L. Emberlin, if any, proximately caused or proximately contributed to cause his injury and death? Ans. No.

"Did the said R. L. Emberlin see the approach of the train in question before he went on the railroad track at the time in question? Ans. No.

"If you have answered the foregoing question in the affirmative, then did the said Emberlin exercise ordinary care for his safety in going on said railroad track? Ans. Yes.

"If you have answered the foregoing two questions in the affirmative, then did the failure of the said Emberlin to exercise such ordinary care for his safety if he did so fail proximately cause or contribute to his injury and death? Ans. No.

"Did the deceased, R. L. Emberlin, as he approached the railroad track in question where the collision occurred, listen for an approaching train? Ans. No.

"If you have answered the above and foregoing question in the negative, then state whether the said R. L. Emberlin, deceased, was guilty of negligence in failing to listen as he approached said track, if he did so fail. Ans. No.

"If you have answered the above and foregoing questions in the affirmative, then state whether such negligence, if any, on the part of the said R. L. Emberlin, deceased, concurred directly and proximately to cause his death. Ans. No.

"Did the deceased, R. L. Emberlin, look for an approaching train before going on the railroad track at the time of said accident? Ans. No.

"If you have answered the foregoing question in the affirmative, then was such failure, if any, a lack of ordinary care on the part of the said Emberlin for his safety? Ans....