Opinion
No. 3696.
June 7, 1929. Rehearing Denied July 4, 1929.
Appeal from District Court, Bowie County; R. J. Williams, Judge.
Suit by G. A. Cato against the Texas Pacific Railway Company. From a judgment for the plaintiff, defendant appeals. Judgment set aside and remanded.
The suit was by appellee for damages for personal injuries received by him while, as he alleged, in the relation of a passenger, through negligence on the part of the railway company in the following respects: (1) In allowing a long passenger train on track No. 1, parallel with and next to the depot, to block the access of awaiting passengers to the passenger train on track No. 3, upon which the plaintiff was to take passage. (2) In failing to provide a free and unobstructed passageway from the depot to the train upon track No. 3, which was stopped there awaiting passengers. (3) In maintaining a square wooden boxlike structure, protruding above the surface of the ground, between the two tracks, the track on which the train was placed and the next track in the direction of the station therefrom; and in maintaining such structure in an ill state of repair. (4) In failing to provide any lighting system whatever for the space between the two tracks where the plaintiff was required to pass to board his train.
The defendant company specially pleaded, as negligence causing and contributing to cause the injuries, that the plaintiff was familiar with the arrangement and location of the track and the trains; that a considerable and reasonable time before the scheduled time for the departure of the train on track No. 3 the trains then occupying tracks Nos. 1 and 2 had been cut in twain so as to allow free and easy passage from the station over and across tracks 1 and 2 to the passenger train on track 3; that a porter was provided to distinctly announce the impending departure of trains and to give directions about how to cross tracks 1 and 2 in order to reach the train on track 3; that the plaintiff attempted to board the train while in motion.
On December 21, 1927, the date of the injury, the Missouri-Pacific Railway Company, the Kansas City Railway Company, and the appellant company, maintained and respectively were using at Texarkana a union depot for receiving and discharging passengers. The depot building extended east and west. Near the middle part of the building was the ticket office, the waiting room for white passengers, and the one for colored passengers, and closets and lavatories. On the east end of the building were the baggage and express rooms, and on the west end were the railway terminal rooms and those used by the Postal Service of the United States. Along the entire front of the depot was a concrete walk, covered by a shed extending its entire length. Immediately south of and parallel with the concrete platform were located three tracks, called 1, 2, and 3, used for passenger trains. Between tracks 1 and 2, and between tracks 2 and 3, were plank platforms, which were on a level with the rails of the tracks, extending the entire length of the depot. There were lights as far as the platform extended. Beginning at the west end of the platform was the railway yard, used as such. Six and one-half feet west of the west end of the depot platform, and located between tracks 2 and 3, is a water box, inclosing a hydrant, used and maintained by the companies in necessary operation of trains. According to the evidence in behalf of the defendant, the water box extended 1 3/4 inches above the level of the cinders between the tracks. According to the plaintiff, the water box was about 6 inches above the level of the surface.
On the evening of December 21, 1927, the appellee went to the union depot above described and purchased a ticket to Fouke, Ark., over the T. S. N. Railway, a line operated by appellant between Texarkana, Tex., and Shreveport, La. The train was regularly run as a mixed train, consisting of one combination coach for baggage, mail, and passengers, and the ordinary freight cars and caboose carried in a freight train. It was invariably placed on track No. 3, with the combination coach nearly opposite the express and baggage rooms on the easterly end of the depot and the board platform above described. The train was so placed in order to receive passengers, mail, and express. According to a schedule of long standing, this train was due to leave the depot at 7:30 o'clock p m. On the evening in question, it actually left the depot at 7:35 o'clock. At the time the appellee purchased the ticket, there was standing on track No. 2 a passenger train of the Texas Central Railway, operated by appellant, and on track No. 1 a passenger train of the Kansas City Southern Railway Company. The Texas Central passenger train arrived on schedule time at 6:35 o'clock p. m., and discharged all passengers; Texarkana being the end of the run. The rear coach of that train rested in close proximity to the water box above described, and the engine rested east thereof and about a car length, or 60 feet, west of the west end of the baggage room. Passengers were discharged at this point on this occasion, but that was not done there before. The Kansas City Southern passenger train was scheduled to arrive at the depot at 6:20 o'clock p. m., and was due to depart therefrom at 6:50 p. m. On the particular evening of December 21 that train was about 35 minutes late, arriving at 6:55 p. m., and departing at 7:50 o'clock or later. The train consisted of an engine and six cars. According to appellee's testimony, however, the train "was long, of seven or eight cars and an engine." The engine of the train, headed east, rested nearly to and opposite the baggage room and approximately 150 feet east of the door of the waiting room for white passengers in the depot. The train, standing connected up, would entirely block the way to passengers seeking to embark on the train on track No. 3. When disconnected or cut in twain at a point opposite or nearly opposite to the baggage room of the depot, an open clear way would be afforded passengers or persons to go from the waiting room and concrete platform to the plank platform and passenger coach of the train on track No. 3.
The appellee thus describes, as need to be stated, the occurrence: "I went to the ticket office in the passenger station and purchased a ticket to Fouke, Arkansas which is on the T. S. and N. Railway. The agent delivered the ticket to me, and I paid him for it. After I purchased the ticket I asked the agent what time the train left Texarkana. He told me it was going to leave soon; if I would hurry up I would have plenty of time to catch it. He told me the track the train was on. I went out of the south door of the waiting-room immediately, and did not loiter. When I got out of the building onto the platform I observed on the first track in front of me a passenger-train standing there, the K. C. S. It was a long train, of seven or eight cars, and had an engine. I took a look both east and west. I went from there west. My purpose in gong down that way was because it was the nearer way to the coach than it would be going east. This train extended west about four cars. When I got down to the west end of that train I went across the two tracks, number one and two, behind the K. C. S. and the T. C. trains. That placed me between tracks 2 and 3. When I reached the way between tracks 2 and 3 I started east. The train I was going to take at this time started to moving, but slow. I thought I could catch the coach and get on. I went on about 40 feet, when I stumbled and fell over a water-box. It was dark, and there was no light there, and I didn't see it, and I was hurrying on up towards the coach. * * * I have been a railroad man — a switchman and brakeman. I worked in that yard between six and seven years, about seven years before that time. At the time of the injury I was not familiar with the location of depot and tracks. * * * I went, as I estimate it, about 240 feet west (from the door of the waiting-room) to get around that train. * * * When I got to the depot I did not say to the ticket agent, `Give me a ticket to Fouke.' I said, `What time does that train (T. S. N.) leave for Fouke?' He told me it left at 7:30. I asked him what time it was then, and he said, `Nearly 7:30, and you have got time enough.' I said, `If I have got time give me a ticket.' As soon as I got my ticket I hurried out."
According to the evidence of the ticket agent, the ticket was purchased "about 7:20 p. m." The fact is undisputed that a moving train crushed the left foot and part of the leg of the appellee to such an extent that amputation was necessary. No one witnessed the injury, and the manner and way of injury rested in appellee's own testimony. He was found by employees of the appellant immediately after the train ran over his foot.
There is affirmative evidence in behalf of appellant that about 7:15 o'clock p. m. the Kansas City Southern train occupying track No. 3 was cut in twain at a point opposite the baggage room, and which was "about two car-lengths above (east of) the waiting-room door." The train was separated "something like twenty or thirty feet," and "stayed unconnected about twenty or twenty-five minutes" and until after the T. S. N. train on track No. 3 had departed. The mail foreman testified: "I told Mr. Kilway, the acting terminal train master, that we had to get this train (K. C. S.) cut in two so we could get to the mail-cars there (on track 3), and he said all right. He told the conductor, and he cut the train between the baggage and mail-car. The cut was made about two car-lengths above the waiting-room door. After the cut was made we pulled the mail across over to the T. S. N. and loaded it right straight on in there. We had forty or fifty sacks of mail put over there and loaded on that train. * * * The railway company did not cut this train until I requested it to be cut, and the reason it happened to be cut that night was the fact that I requested it to be cut."
Several other witnesses testified to the same thing. The appellee testified: "I walked right straight out of the station and within six or eight feet of the train that was on the track (No. 1). I then looked both east and west. As it happened then, as I looked at the train, I did not see any opening in the train at all. As I looked at it to the east and looked at it to the west it appeared to be longer to the east, and then I decided to go around the west of the train." He further testified: "I looked up both ways. I could see clear up, but could not see the engine. It was dark. I could not see beyond the express office on account of the trucks there. I knew those trucks did not go up as high as the passenger-coach. * * * There was no cut up there just beyond the depot, in that K. C. S. train. There was no cut there at all when I went out and looked, and that was about 7:30."
It was shown that three mail trucks were parked within 14 or 16 inches of the body of the end car, which was disconnected from the train on track No. 1 for the purpose of loading mail. It also appears that there were other trucks loaded with mail parked next to the waiting room for colored people. It was shown by appellant that an employee was kept in the waiting rooms to call the departure of trains, and that on this occasion departure of the train on track No. 3 was called at the proper time. It was further shown that this employee showed several passengers how to get through the cut on the train. The appellee did not testify that he made inquiry from this or any other employee as to how to reach the coach on track No. 3.
The court submitted the case to the jury upon special issues. The two issues of alleged negligence submitted were: "Do you find from the evidence that the defendant failed to have the way pursued by plaintiff in going to the train lighted?" and "Was such failure negligence?" and "Did the water-box extend above the surface of the ground?" and "Was defendant guilty of negligence in permitting the water-box to extend above the ground?" A number of issues relating to alleged contributory negligence were submitted. All issues submitted were found in favor of appellee.
The trial court made the following additional findings of fact: "The train occupying track number 1 was cut at a point approximately 150 feet east of the door of the passenger waiting-room the plaintiff left to board his train, for a reasonable length of time before the departure of the train on which the plaintiff intended to take passage. No employee of the defendant invited the plaintiff to take the route actually taken by him to reach the passenger-coach, and I find that no employee advised the plaintiff how to reach his train. No employee or servant knew the plaintiff intended to pursue the particular route taken by him. The plaintiff was injured at a point where the defendant occasionally received and discharged passengers on some of its trains. The train on which the plaintiff intended to take passage on the night he was injured was made up at the usual and customary place at which trains were made up, and the passenger-coach was at the usual and customary place." The above finding, that "The plaintiff was injured at a point where the defendant occasionally received and discharged passengers on some of its trains," is not supported by and is contrary to the weight of evidence, and we do not sustain the finding as a fact.
King, Mahaffey Wheeler, of Texarkana, for appellant.
J. A. R. Moseley, Jr., of Texarkana, and, Jones Jones, of Marshall, for appellee.
The appellant requested the court to direct a verdict in its favor, which request was refused. The fact is undisputed that the passenger train temporarily on track No. 1, so long as it remained coupled up, blocked access of a passenger on the depot platform to the train on track No. 3 placed there to receive awaiting passengers. Although the train that blocked such access was not a train owned and operated by the appellant company, yet in the exercise of care, as a duty due to the appellee, it was incumbent upon the appellant to so operate its train on track No. 3 that the passageway to it from the depot platform be not blocked by another intervening train. This duty might have been fully performed by holding the train on track No. 3 a reasonably sufficient time after the clearance of track No. 1, or by providing a passageway to the train on track No. 3 from the depot platform by timely and sufficient separation of the cars of the train on track No. 1. Ry. Co. v. Holloway, 71 Kan. 1, 80 P. 31, 114 Am.St.Rep. 462. It is a condition precedent to the exoneration of appellant that it should have been in no fault in this respect. There is affirmative evidence in behalf of appellant that the cars of the passenger-train on track No. 1 were timely uncoupled and separated and a clear and sufficient passageway made to the train on track No. 3. The train was cut in twain about 7:15 o'clock, before the scheduled time of 7:30 o'clock for the train on track No. 3 to depart from the depot. The evidence of the appellee, though, tends to denial of this occurrence. But, in view of the great preponderance of the evidence in that respect, it may be assumed, for the moment, for the purpose of decision of the assignment of error, that the passageway through the train on track No. 1 was made. Although the obstruction was cleared and an open way made, yet such passageway was made at a point, not opposite the depot platform in front of the waiting room of the depot, but at a point "between the baggage and mail-cars and opposite the baggage-room" which was "about two car-lengths above the waiting-room." Such passageway was made, according to the evidence, not for the use of passengers, but primarily in order to allow the mail to be loaded on the train. The mail foreman testified: "The railway company did not cut this train until I requested it to be cut, and, the reason it happened to be cut that night was the fact that I requested it to be cut." At the point where the opening was made, the passageway was not observable, as the appellee testifies, from the depot platform in front of the waiting room, because of intervening obstructions. He said: "I walked right straight out of the station and within six or eight feet of the train that was on the track (No. 1). I looked east and west. As it appeared then, as I looked at the train, I did not see any opening in the train at all. * * * I could see clear up, but could not see the engine. It was dark. I could not see beyond the express office on account of the tracks there." As appeared, there were mail and express trucks which may have obstructed a clear view of the opening in the train. In the absence of any direction or notice from appellant to appellee, as appears, that the opening had been made, and considering that such passageway, although timely made, was not obvious and apparent, whether appellant's negligence was the proximate cause of the injury, and whether appellee's attempt to board the train in the way and manner done was negligence on his part, were at least fair questions for the determination of the jury. In such circumstances stated, the company could reasonably have foreseen and anticipated that some of the waiting passengers would attempt to board the train on track No. 3 if it appeared that it could be conveniently done. The standing of the train there on track No. 3 ready to receive passengers and to leave on schedule time was, in a way, an invitation to passengers to board it by ways or routes around the train on track No. 1. The route taken by appellee to pass around the train on track No. 1 was not, as appears, such a way as that a person of ordinary caution would not necessarily have traveled. Though the immediate cause of the injury was the tripping of the appellee on the water box between the tracks, yet, if appellant, by omission of its own in failing to provide an opening in the train, occasioned the route taken, its negligence in so doing may be regarded, as the jury might find, as the proximate cause of the casualty overtaken by appellee as a probable consequence thereof.
The appellant next contends there was error in predicating liability in negligence in failing to light the way pursued by appellee in going around the passenger train to board the train on track No. 3, and in permitting the water box located on that way to extend above the surface of the ground. Traveling, as appellee was, the way around the train on track No. 1 and east between tracks Nos. 2 and 3, to reach the place for taking passage on his train, the factual elements of its being in the nighttime and with no lights to enable him to choose his way in going down the space between the tracks, and coming to the water-box located in the space between said tracks and tripping on same, all bear upon contributory negligence vel non and the natural and probable consequence of the negligence or wrongful act of the appellant. In the circumstances, though, actionable negligence may not be predicated thereon. Davis v. Houston E. W. T. R. Co., 29 Tex. Civ. App. 42, 68 S.W. 733; Louthian v. Fort Worth D.C. R. Co., 50 Tex. Civ. App. 613, 111 S.W. 665. That which fixes the charge of negligence on the railroad company in the circumstances is that it did not provide access or opening in the intervening train for appellee to board the train on track No. 3, or in providing the opening at a point not visible and obvious to appellee from the platform of the depot and in failing to notify or warn him of such opening. The following cases bear, in principle, upon the circumstances: Ry. Co. v. Holloway, 71 Kan. 1, 80 P. 31, 114 Am.St.Rep. 462; Mayne v. Ry. Co., 12 Okla. 10, 69 P. 933; Ry. Co. v. McElroy, 76 Kan. 271, 91 P. 785, 13 L.R.A. (N.S.) 620, 123 Am.St.Rep. 134 Ry. Co. v. Daugherty (Ky.) 108 S.W. 336, 15 L.R.A. (N.S.) 740; Warner v. Ry. Co., 168 U.S. 339, 18 S.Ct. 68, 42 L.Ed. 491.
The issue of negligence in failing to provide a free and unobstructed passageway being raised and not requested to be submitted to the jury, it must be regarded as waived. Ormsby v. Ratcliffe (Tex.Sup.) 1 S.W.2d 1084; Arrington v. McDaniel (Tex.Com.App.) 14 S.W.2d 1011. Therefore the finding by the court may not be regarded on appeal as a basis for judgment.
It is believed that the judgment must be set aside as not warranted upon the grounds of negligence submitted to the jury, and the cause remanded for another trial; and it is accordingly so ordered.