Opinion
No. 3816.
March 6, 1930. Rehearing Denied March 20, 1930.
Appeal from District Court, Smith County; J. R. Warren, Judge.
Suit by Mrs. Lutishie Jenkins, administratrix, and others, against the Texas Pacific Railway Company. Judgment for plaintiffs, and defendant appeals.
Affirmed.
William Bridwell, aged nineteen, was killed at a road crossing at Iatan, in Mitchell county, Tex., at 4 o'clock, p. m., on August 13, 1928. The truck he was driving was struck on the road crossing by one of appellant's engines being operated on the main line track. The suit was for damages for his alleged wrongful death. The railway company appeals from a judgment in favor of the plaintiff.
Iatan is a village in a prairie country which is practically level. The main line track of the railway company there runs east and west. There is also, on the south side of the main line track, a long switch or house track which runs east and west. The eastern part of the side track was used at the time in question for unloading iron pipes and like freight shipped to a pipeline company. The depot is located between the main line and the switch track. There is a space of 28 feet between the two tracks. The depot proper, running from east to west, is 45 feet long and has a platform extending 40 feet eastward. A roadway used by the public runs westerly parallel to the switch or house track until it reaches a point about 200 feet west of the depot, where it makes a sharp turn north and crosses the railway tracks at right angles. After leaving the railway right of way the roadway enters into a regular highway. This roadway, crossing the railway tracks, is 17 feet wide and was opened up and graveled by the railway company to be used by the public in receiving shipments of freight to be unloaded and delivered on the upper part of the side track. At the time of the injury William Bridwell was employed by Stuart Stuart, contractors laying a pipe line, as a truck driver hauling iron pipes. The iron pipes, lying at the time on the side track of the railway company, were loaded on a trailer attached to the auto truck. William Bridwell was traveling west on the roadway, bound northward, over the crossing to the public highway; and when he reached a point at the crossing near the side track the appellant's west-bound freight train came along on the main line track approaching the depot and crossing. William Bridwell stopped the truck near the side track, and, as the caboose of the freight train passed the crossing, he started the truck moving. It appears, however, that following next behind the freight train on the main line track, and going in the same direction west, was engine No. 408. This engine was not attached to any train, but was being sent over the railroad from Baird to Big Spring for service, the character of which service not being described in the record. Iatan is only an intervening station between the two points mentioned. This engine No. 408 was running behind the freight train at a distance stated by some witnesses as being "not over a minute," and by one witness as being "not over five minutes." The engine was running as it approached the crossing at the speed, as practically admitted, of between 20 and 25 miles an hour. There is conflict in the evidence as to whether or not any warning was given of its approach to the depot and crossing. There is much evidence that the whistle was not blown and the bell was not rung. The condition of the side track, as admittedly shown, is reflected in the following evidence of a witness:
"Shortly after Bridwell's injury I noticed the condition of the side-track from the roadway eastward, as to whether there was or not anything on the track between the roadway and the depot. I observed this immediately after Bridwell was hurt. There was some cars on the track at the time: there was a stock-car on the side-track some 16 or 18 feet east of the crossing, and there was a skip (or open space). Then even with and east of the station several cars were tied together. I observed cattle-cars, box cars and flat cars on this sidetrack. There were quite a few cars there. They much obstructed the view of trains approaching from the east — a man's vision of a train approaching from the east would be obstructed very much when he drove up on the house or switch track, if the engine were coming from the east."
The roadway between the two tracks and at the main line track had rough holes in it, due to much heavy travel. The collision is thus described (quoting from the evidence of an eyewitness):
"There was a freight-train going west ahead of an engine. I heard the crash when this engine struck the boy. The freight-train had been gone something like two or maybe three minutes when I heard the crash. His truck and trailer together was about 50 feet long. At the crossing the distance between the tracks is something like 25 to 28 feet. I couldn't see his truck at the time the boy came up, for a cattle-car on the side-track; that car was between me and him. I could see the trailer — the back part of it. As he approached the crossing he stopped. The trailer wasn't moving. From the view I had I couldn't tell for sure whether the caboose of the freight-train had passed by the crossing when I saw his trailer stop. From what I saw the truck do he stopped before all of the freight-train got by the crossing. I could see that the trailer was stopped. I saw the trailer when it started up. I saw the engine that struck Bridwell. The engine was right in front of the depot, running about 20 or 25 miles an hour. There wasn't any bell ringing. Just before the crash there were about three quick blasts, and then the crash came. About the third blast was when it hit. When the crash occurred I ran over to where it occurred. I found the boy's body under the cowcatcher of the engine. The truck and trailer were thrown on the south side of the main track."
The jury found some of the issues pleaded and submitted to them in favor of the defendant, and found some of the issues pleaded and submitted to them in favor of the plaintiff. They found in favor of the plaintiff upon the following issues pleaded, and submitted: (1) Negligent failure of the operatives of the engine to give warning of the engine's approach by sounding the whistle and ringing the bell, proximately causing the injury; (2) negligent failure of the operatives of the engine to keep a lookout in approaching the crossing, proximately causing the injury; (3) negligent failure on the part of the company to maintain the crossing in a reasonably safe condition, proximately causing the injury; and (4) negligent failure of the operatives of the engine, after discovering the decedent's perilous situation, to use means at hand to check the speed of the engine and avoid injuring him, proximately causing the decedent's fatal injury. The latter issues submitted read:
"Question 20. Did the operatives of the engine, while approaching to pass over the crossing at the time in question, discover that the truck and its occupant were going upon the crossing ahead of the engine and would be struck thereby unless the collision were averted, in time for the engine operatives, by use of all means at hand consistent with their own safety and the safety of the engine, to have reduced the speed of the engine so as to avoid the death of the deceased?" Jury answer: "Yes."
"Question 21. Did the engine operatives, after discovering that the truck and its occupants were going upon the track ahead of the engine and would be struck thereby unless a collision were averted, if you find they did so discover, fail to use the means at hand to check the speed of the engine?" Jury answer: "Yes."
"Question 22. Was such failure to use the means at hand to check the speed of the engine, if you so find, negligence on the part of the operatives of the engine?" Jury answer: "Yes."
"Question 23. Was such negligence, if you so find, a proximate cause of William Bridwell's death?" Jury answer: "Yes."
None of the above findings of the jury are complained of on appeal.
On contributory negligence the jury made the findings: (1) That deceased was not guilty of contributory negligence in going upon the crossing as and when he did, and (2) that the deceased did not fail to stop his truck and look and listen for an approaching engine before he attempted to cross the track. The latter issue submitted to the jury reads: "Do you find from a preponderance of the evidence that deceased failed to stop his truck and look and listen for an approaching train or engine before he attempted to cross the defendant's line of railway?" Jury answer: "No."
The sum of $5,000 was awarded by the verdict. On appeal the following contentions are presented:
"(1) The court erred in refusing to instruct the jury to return a verdict in this cause in favor of the defendant.
"(2) The court erred in refusing to give the defendant's requested charge No. 2 instructing the jury that if the deceased failed to stop, look and listen before he drove his truck upon the railroad track he would be guilty of contributory negligence as a matter of law.
"(3) The verdict of the jury allowing the plaintiff to recover $5000.00 damages is grossly excessive in amount."
Defendant pleaded, besides contributory negligence, specially as follows: That the defendant was incorporated by an act of Congress which declared it to be a military and post road; that since its incorporation the company has been engaged in interstate commerce in transporting passengers and freight from the city of New Orleans in the state of Louisiana to the city of El Paso in the state of Texas, and owns and operates a line of railway extending between the said points. The service the engine at bar had been, engaged in, and the service it was destined to be put to at Big Spring on its arrival there, is not shown in the evidence. There is no proof or claim that the engine itself at the time of the collision was engaged or employed in commerce either intrastate or interstate.
Jones Jones, of Mineola, and Gentry Gray, of Tyler, for appellant.
Edwards Hughes, of Tyler, and Perkins Perkins, of Rusk, for appellees.
Error is predicated upon the refusal of the trial court to give the requested instructed verdict, upon the ground, as claimed, that the deceased "was guilty of contributory negligence" which would defeat the plaintiff's recovery. It is argued that, according to the undisputed evidence, "William Bridwell drove his truck upon the railroad track without stopping said truck or alighting from same to ascertain whether or not the engine was approaching the crossing," and because of such fact the court should have held as a pure matter of law that he was guilty of contributory negligence proximately causing his death. It is undisputed that the deceased stopped his truck at the side track until the freight train had passed the crossing. He started his truck to moving after the caboose of the freight train had passed the crossing, and the engine following the freight train struck the truck. The point made by the appellant is based upon the contention that the facts bring the present case within the case of Ry. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 72 L.Ed. 167, 56 A.L.R. 645, and that such case would control because the line of the appellant's company is an instrument of commerce and the company is engaged in interstate as well as intrastate business. There is no proof nor claim that the engine itself which struck and killed the deceased was in any way employed in interstate commerce at the time. In view of this latter fact, the Goodman Case would not be controlling instead of decisions of the courts of this state. The rule in this state would not authorize the court, under the circumstances, to hold that the deceased was guilty of negligence as a matter of pure law. Boyd v. Ry. Co., 101 Tex. 411, 108 S.W. 813; Trochta v. Ry. Co. (Tex.Com.App.) 218 S.W. 1038. Assuming, for the moment, the fact to be that the appellant is an interstate line and does interstate business, nevertheless we think there was no error in refusing the peremptory instruction, in view of the pleading and the particular evidence of the case. The Goodman Case is discussed and distinguished in the case of Ry. Co. v. Waid, 278 U.S. 629, 49 S.Ct. 29, 73 L.Ed. 547; Id. (C.C.A.) 25 F.2d 366, and in which certiorari was refused by the United States Supreme Court. There it was decided that, under the circumstances proven, an automobile driver, although struck by a train at a crossing, could not be held guilty of contributory negligence as a pure matter of law. In the present case, as in the Waid Case, supra, whether the deceased was guilty of contributory negligence or not was a question to be passed to the jury for decision, as there was room for reasonable persons to differ and have doubt thereof, considering all the circumstances in the case. However, the Goodman Case may not be regarded as at all events controlling the case, because there is another phase of the case at bar pleaded as an additional ground of recovery that makes inapplicable the theory that the contributory negligence of deceased would defeat plaintiff's recovery. It is that phase of the case which we think presents the chief and conclusive legal reason, even assuming that the proof shows the company to be a federal agency, why we cannot hold that there was error in refusing the peremptory instruction on the ground of contributory negligence. It was pleaded that the operatives of the engine discovered the deceased at or upon the track and realized his peril of being injured by the engine, and negligently failed to exercise reasonable care to avoid injuring him after discovering his exposed position. This is the recognized law, commonly known as "discovered peril" or "discovered negligence," where liability results, notwithstanding any contributory negligence on the part of the injured person. 2 Thompson on Neg., Chap. 55, p. 434; Ry. Co. v. Weisen, 65 Tex. 443; Ry. Co. v. Matula, 79 Tex. 577, 15 S.W. 573; Ry. Co. v. Bowen, 95 Tex. 364, 67 S.W. 408. Also the doctrine of the "last clear chance." 3 Labatt on Master and Servant, § 1241. The trial court recognized this rule of law and instructed the jury accordingly. The jury found in favor of the plaintiff upon the issue, and, as their finding is not challenged, we must take the fact as conclusively established by the verdict. This finding of fact upon discovered peril of itself and by itself would support the judgment of liability on the part of appellant. Therefore the appellant's assignment of error is overruled.
It is next urged that the amount of damages as found by the jury is excessive. The deceased was nineteen years old at the time of his death, and he was strong and healthy. There is evidence going to show that he was very much attached to his mother. While there is evidence warranting a finding of a sum less than the jury concluded should be awarded, yet in all the evidence the appellate court cannot say that the amount as awarded by the jury was so large as to amount to an excessive sum of recovery There is no fact or circumstance indicating that the jury were actuated by an improper motive in fixing the amount stated in the verdict, and such amount is not greater than am proved in other cases upon evidence not unlike that of the present case.
The judgment is affirmed.