Wininger v. Ft. Worth & D. C. Ry. Co.

• Decision Date: 21 February 1912
• Citation: 143 S.W. 1150
• Parties: WININGER v. FT. WORTH & D. C. RY. CO.
• Court: Texas Supreme Court

143 S.W. 1150

WININGER v. FT. WORTH & D. C. RY. CO.

Supreme Court of Texas.

February 21, 1912.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by Halys Wininger, by her next friend, E. H. Wininger, against the Ft. Worth & Denver City Railway Company. From a judgment of the Court of Civil Appeals (141 S. W. 273) reversing a judgment for the plaintiff, plaintiff brings error. Reversed and remanded to Court of Civil Appeals.

A. T. Cole and Odell & Johnson, for plaintiff in error. Spoonts, Thompson & Barwise, H. B. White, and Turner & Wharton, for defendant in error.

BROWN, C. J.

The honorable Court of Civil Appeals of the Seventh District reversed the judgment of the trial court, which was in favor of Halys Wininger, and rendered judgment for the railroad company, saying: "We are of the opinion that the evidence, taken as a whole, fails to show such negligence as is alleged in the petition, on the part of appellant or its employés, proximately causing the injury complained of, and that therefore the requested charge should have been given, and that for failure to give same this cause should be reversed; and, as the case appears to have been fully developed on the trial below, judgment should here be rendered for appellant; and we think the facts hereinbefore found, together with the necessary deductions to be drawn therefrom, sustain said conclusion."

The honorable Court of Civil Appeals had authority to reverse the judgment of the trial court on the preponderance of the evidence; but it could not render the judgment, if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff.

The honorable Chief Justice of the Court of Civil Appeals of the Seventh District made a very careful and elaborate statement of the evidence, which will greatly aid this court in reaching a conclusion upon the issue before us.

Clarendon is the county seat of Donley county, and the road of the defendant company passes through the town, we will say from each to west, dividing the town so that hotels and some business houses and residences are north of the tracks; but the main business houses, churches, and school-houses are on the south of the railroad tracks. The tracks of the railroad extended from east to west, as before stated, and the side tracks and switches, in fact the yards of the railroad, were located on the north side of the track, embracing about 400 feet north and south and 3,000 feet east and west. Three switch tracks were located on the north side of the main track, numbered 1, 2 and 3, and one switch track on the south. A water tank and coal chute were located in the yards.

"The company's said yards had been inclosed by a post and wire fence for many years, but the fence was not in good repair at the time of the injury and had not been for some time prior thereto, there being places where the wire was loose from the posts, and in one or two places the top wires had been tied together so as to allow easy passage of pedestrians through the fence, and those who had occasion so to do had been for many years going through and over said fence and across said yards and tracks to such an extent as to make reasonably well-beaten paths along and across said yards, and which existed at the time of the occurrence. Children living in the same vicinity with appellee on the north side of the tracks had been habitually going and coming across said yards in attending school on the south side thereof. Garnet street is the first open street east of the yards connecting the north and south sides of the city, and it was generally used by persons in the northeast and southeast portions of the city in passing from north to south over the line of railroad. Appellee resided with her father in the southeast corner of block No. 238, the east boundary line of which forms the west boundary of Garnet street, and it is the second block north from the company's yards; his residence being about 500 or 600 feet a little west of north from where the company's main line crosses Garnet street. The church to which appellee and her father had started when she received her injuries was situated in the northeast corner of block No. 42, being the fourth block and about 700 or 800 feet south of the company's main line, and between Gorst and Kearney streets. It is thus seen that appellee resided northeast of the company's yards, and the church to which she was going was southwest thereof.

"On Sunday morning, about 9 o'clock, about April 25, 1909, appellee, in company with her father, left their home to go to church, intending to cross the railroad on Garnet street; but as they came out of their residence they saw that an engine and train attached headed east was standing across Garnet street, so they took one of the trails or paths mentioned, leading in a southwest direction, and followed it until after they got into the company's yards, passing on to the yards about 1,000 feet east of the water tank, and reached switch track No. 3 at about 950 feet east of the water tank; but as there was a string of cars on track No. 3, they continued in a west course on the north side of the track until getting within about 500 or 600 feet of the water tank. They came to the caboose, which had been cut loose from the train, and here they crossed track No. 3 east of the caboose so as to be between it and track No. 2, and continued their journey west. About the time they were passing the caboose, they passed also the conductor, who was on the ground between tracks Nos. 2 and 3 and near the west end of the caboose; he seeing them, and they him. There then being a string of cars on track No. 2, they continued their journey west between tracks 2 and 3 to a point slightly east of the water tank, when they tried to cross track No. 2, by going between cars, and which were separated a space of six to eight feet on track No. 2, and in attempting to cross track No. 2 at this point appellee received her injury by a car which was moving west on track No. 2; the father at the time being from one to two steps ahead of her. At the time they passed the conductor and brakeman as hereinbefore mentioned, the father was slightly ahead of the child. While appellee and her father were going west between tracks 2 and 3, after they had passed the conductor, they saw the rear brakeman on top of the train then on track No. 2, and he saw them, and they passed on by. There was a long string of empty box cars standing on track No. 2, extending from about 15 to 20 cars east of the water tank to 20 or 25 cars west of it; this string of cars being uncoupled in two or three places, leaving a...