International & Great Northern Railroad v. Tabor

COLLARD, Associate Justice. The statement of the nature and result of the suit is correctly made in the appellant’s brief and it is as follows: “This action was brought by Thomas B. Tabor (a minor without guardian) by J. L. Tabor as next friend, as plaintiff in the court below, to recover damages from the appellant, the International & Great Northern Railroad Company, for injuries inflicted upon plaintiff’s foot and ankle, alleged to have resulted from the willful negligence of the defendant’s employes. Plaintiff alleged in his petition that he was an employe of the Cotton Compress Company at Taylor, Texas; and that the defendant had permitted the hands employed at said compress, by general use, to establish a pathway through its switchyard and over its track at Taylor; and that on the day of the injury plaintiff traveled said pathway until he came to defendant’s track, where he intended to cross said track, but finding the same obstructed by a freight train which was being switched in defendant’s said yard, plaintiff waited a reasonable time for said train or cars to be moved; but same not being moved and seeing other compress employes pass through said cars, he attempted to pass between the said cars by climbing over the drawheads or bumpers; that the defendant’s employe, whose duty it was to give signals for moving the train, saw plaintiff go between the said cars and, knowing his position of danger, wilfully and negligently caused said train to be moved as plaintiff was passing between the cars, and plaintiff’s foot was caught between the drawheads of the cars, crushing his foot and ankle, to his actual damage $10,000. The defendant answered by general demurrer, general denial and specially denied that it has permitted a way to be established through its yard or over its track at the point where plaintiff was injured, and specially denied that any of its employes knew or had reason to believe that, plaintiff was upon its premises or between its cars at the time of the injury; and it averred that at the time of plaintiff’s injury its employes were exercising ordinary care in moving and handling its cars in its yard, and that plaintiff was a trespasser upon its property and, without the consent, knowledge or license of defendant or any of its employes, negligently and wrongfully attempted to pass between its cars; and that his injuries were due to his own negligence, for which defendant could not be held liable.” There was a verdict for plaintiff for $2,000 and judgment accordingly, from which defendant has appealed. Findings of Fact. — The Taylor Cotton Compress was located in *288 the city of Taylor about 150 yards south of the point on defendant’s switch track where plaintiff was injured. During the season for compressing cotton the compress employed forty or fifty hands who lived in different portions of the city of Taylor, some of whom lived north of the railroad. Since August, 1893, there had been a path leading from the compress north through defendant’s switchyard up to the dump or approach to the track which was five to ten feet south of the track at the point where plaintiff was injured. This path was made by the employes of the Compress Company in going to and returning from their work, morning, noon, and in the evening. The employes of the Compress Company who lived north of the switch track were accustomed to travel on this path through defendant’s yard and across the track when not occupied by the cars. The defendant company had not given any express permission for such employes to establish the way over the track and it had posted about the yard notices prohibiting all persons from trespassing upon its yard and going between or upon its cars, which rules the employes of defendant made efforts to enforce. There was no public crossing at or near the place where this path crossed the track where plaintiff was hurt. The public crossing was from 200 to 400 feet west of this point, and it was near the middle of the switch. Plaintiff was thirteen and a half years old, was one of the employes of the compress, lived north of the yard and was accustomed to travel on the path going to and from his work. On October 18, 1893, at about 6 o’clock P. M., he, in company with a number of the hands of the compress, going to his supper after they had stopped work in the afternoon, walked up the path intending to cross the track, but when they reached the track it was occupied by a train of defendant’s cars, twenty-five or thirty cars, the path crossing being near the middle of the train of cars. The train was not in motion. Some of the men climbed over the bumpers between the cars at different points. The engine was at the east end of the train; a switchman was west of plaintiff, the latter being between him and the engine in plain view. Plaintiff waited some five or ten minutes for the train to move, but as it did not, he decided to pass between the cars over the bumpers. When he got in between the cars, the switch-man saw him and knowing that he was there between the cars, gave the signal to the engineer to move back with the train. Plaintiff was on the bumpers looking for a safe place to jump off on the other side when the cars backed up rapidly, catching his feet between the bumpers as the cars came together,, injuring him as alleged. He did not remain longer between the cars than was necessary to go through. Most of the men had gone through between the cars before plaintiff attempted it, and one had just passed through before plaintiff between the same cars. The switchman did not say anything to plaintiff or any of the men about passing between the cars, nor did plaintiff notify him that he was going through. The time was about twilight, some of the witnesses testifying that the sun was shining and others that it was dark *289 enough to use the lanterns of the trainmen. Some of the testimony tended to show that the switchman who signalled the engineer to move the train did not see the plaintiff when he went between the cars and that he did not know he was there, but other testimony shows that he was looking that way, was only twenty feet away, that it was light enough, and that he must have seen him, the plaintiff, when he went in between the cars, and knew he was there when he signalled the engineer to move the train. Opinion. — The court instructed the jury that the uncontroverted evidence showed that plaintiff was guilty of contributory negligence contributing to his injury, and that to entitle him to a recovery they must believe from a preponderance of the evidence that defendant’s employes operating the train, or some of them, saw and knew the plaintiff’s position of danger in time by the exercise of ordinary care to have avoided the injury, and that, unless they so found, to return a verdict for defendant. In deference to the verdict of the jury under this charge, we conclude that the switchman, upon whom the testimony of knowledge of the position of plaintiff was concentrated ahd who gave the signal to back the train, thus causing the injury, knew* the danger of the plaintiff at the time he gave the signal to back the train. There was testimony authorizing the jury to so find, and though there was positive testimony to the contrary, we cannot hold that the verdict was not supported by the testimony. In view of the effect of the foregoing charge of the court, we are unwilling to hold that there was "reversible error in ¡permitting plaintiffs to prove the custom of the hands of the compress to cross the track of defendant when not occupied by ears, or that there was such error in permitting proof that such custom still existed. The testimony of custom could have no effect beyond a tendency to relieve plaintiff of negligence in crossing where and in the manner he did; and when the court told the jury expressly that plaintiff was guilty of negligence that contributed to his injury, all injurious effect of the testimony complained of was nullified, and the jury could not have considered any question but that presented by the charge making defendant liable only in case its servant saw and knew plaintiff’s danger. The court’s charge cured any error that might have been committed in the admission of the testimony objected to. We think the assignments of error on this point should not be sustained. We cannot see that the court erred to the injury of the defendant in presenting the issues to the jury by copying averments in plaintiff’s petition. The jury were allowed to take all the pleadings with them in their retirement. Sayles’ Civ. Stats., art. 1303. There was no error in the court’s refusal to instruct the jury at the instance of defendant to return a verdict for defendant. The court submitted the very issue to the jury upon which under the issues and testimony the defendant could be held liable, or not liable. Though the plaintiff was guilty of contributory negligence and ex *290 posed himself to danger, yet if defendant’s servants discovered his danger in time to have avoided the injury by the exercise of ordinary care, the company would be liable if he was injured by their negligence in backing the train on him. Railway v. Sympkins, 54 Texas, 620; McDonald v. Railway, 86 Texas, 13; Railway v. Cocke, 64 Texas, 158; Hays v. Railway, 70 Texas, 607;. Railway v. Evans, 71 Texas, 361; Artusy v. Railway, 73 Texas, 193, et seq.; Railway v. Smith, 52 Texas, 184; Railway v. McDonald, 75 Texas, 47; Railway v. Keith, 74 Texas, 290; Railway v. Roberts, 2 Texas Civ. App., 114. Delivered January 29, 1896. The fact may be admitted that plaintiff was guilty of contributory negligence, yet the facts abundantly show that defendant’s servant, the switchman, after having knowledge of his peril, was guilty of negligence that caused the injury, and that he might have avoided the injury by the exercise of ordinary care. This being true, there was no error in refusing a new trial for insufficiency of testimony showing defendant’s liability, or upon the ground that plaintiff was a trespasser and contributed to his own injury. The judgment of the court below is affirmed. Affirmed. Writ of error refused.