Fort Worth & R. G. Ry. Co. v. Woodward

LEVY, J. (after stating the facts as above). It is the contention of appellant that the trial court erred in determining, and peremptorily instructing the jury, that the evidence conclusively established as a matter of law that the collision resulted wholly through negligence on the part of the agents and employees in the service of the appellant operating the trains. The appellant urges that the evidence raised the issue for the jury to decide both as to whether or not the collision was an unavoidable happening, or was due to negligence on the part of the train operatives. Of course, if the evidence, properly Construed, does not show as a matter of law that there was failure, as alleged in the petition, of the “agents and employees in the service of the defendant operating said trains” to exercise that degree of care legally owing to passengers in the operation of trains to avoid a collision between two trains out on the main line, then appellant’s contention should be sustained that the court erred in not submitting the issue to the jury. As the record is presented, the evidence is undisputed that the passenger train left the station of Cresson at 9:02 o’clock a. m., and that the freight train left the same station, following the passenger train, at 9:08 a. m. The passenger train, according to the evidence, upon leaving Cresson was running at the speed of “one-third of a mile in a minute,” or twenty miles an hour. It thus appears that the passenger train made the four miles out of Cresson in twelve minutes, and that it was 9:14 o’clock a. m. when it stopped at the signal of 'the bridge flagman. However, as the conductor and engineer of the passenger train and the passenger Hayes all placed the time of collision at “between two and three minutes” after the passenger train stopped, it might be inferred that ¿at the time the passenger train stopped at the four-mile point it was 9:12 or 9:13 o’clock, instead of 9:14 o’clock. At 9:15 o’clock a. m., according to the testimony, the collision occurred. The freight engineer placed the exact time of the collision at “9:15 o’clock a. m.,”‘ he having looked at his watch to verify the time. Nor do the circumstances or the evidence of any witness tend to contradict the freight engineer as to the precise time that the collision occurred. Establishing, as the evidence does, that the collision occurred at 9.T5 o’clock a. m., then it was in seven minutes after it left Cresson that the freight train ran into the rear end of the pas'senger train. If the passenger train was running, as the evidence shows, at its usual speed, and such usual rate of speed placed it at the four-mile point at 9:12 or 9:13 o’clock a. m., then it is evident from the evidence that the freight train was not being operated so as to keep five minutes at least behind the passenger train schedule running time. The freight train was running only two or three minutes at most behind the passenger at the time the passenger train stopped. Further, it is undisputed that the brakeman of the passenger train, called “the flagman,” was not at his proper place on the train at the time the passenger train stopped, and by reason thereof failed to get further back than “two telegraph poles,” or 200 feet, behind the sleeper before the collision occur-récl. The operatives of the trains testify, “the only way then,” if two trains run five minutes apart, “for the trains to get together is for the freight train to get' up too close, or for the flagman not to go back like he ought to.” All the evidence agrees that if the flagman “had been further back,” the collision would have been averted, although the freight train was running at the time less than five minutes behihd the passenger train time. The collision could not be averted, under the circumstances, it is established, by a signal given in so short a distance as 200 feet. The evidence is that the flagman should have been,' in order to avert the collision under the conditions existing, “back four or five hundred feet” from the sleeper. All the circumstances conclusively *231 show that there was failure on the part of the freight engineer and the flagman of the passenger train to observe and follow the two rules prescribed as being the ordinary and practical standards of safety in the operation of trains on the main line; the one being that the freight train should run five minutes at least behind the schedule running time of the passenger train, and the other being that the passenger rear brakeman should keep stationed on the end of the rear car of the train to flag approaching trains at any time when the passenger train might stop on the main line. X-Ience, upon this proof of admitted failure on the part of said train operatives to observe the two ordinary and practical standards of safety prescribed for the operation of trains on the main line, negligence towards a passenger could clearly and reasonably be predicated as a matter of law. But in order to determine whether it can legally be said that there appears an uncertain inference of negligence on the part of the, operatives of the train, or that the collision might as plausibly have resulted from an unavoidable happening, the further attendant circumstances are considered- in connection with the above facts. According to the evidence there was a heavy and unusual fog that morning that rendered it impossible for the freight engineer to see further than “two telegraph poles,” or 200 feet, ahead of his engine. That fact was not the producing cause of the collision, and would not relieve the presumption or inference of negligence arising-from the operation of the freight train so close behind the schedule time of the passenger train as the evidence shows was done. The engineer knew, as he says, all about the density of the fog before he left Cresson and all during the time he was running the four miles. The fog did not suddenly arise. Consequently the evidence conclusively shows that even though the freight engineer knew that he was following the passenger train under conditions of “slick, very slick rails,” and “very foggy weather,” and on “a downgrade track” shortly out of Cresson, yet that He nevertheless so operated the freight train as to cover four miles in seven minutes and to run less than five minutes behind schedule running time of the passenger train, resulting in the collision. Assuming that but for the fog the freight engineer could have seen the passenger train in time to have stopped the freight train, yet negligence as a matter of law could be predicated on the fault of the flagman. The flagman of the passenger train also knew of the weather conditions and the track conditions and that the freight train was following; but notwithstanding all these known conditions, he was, without any effort at excuse, out of his usual and required position, proximately resulting in his failure to reach a point more than 200 feet to the rear of the sleeper before the freight train came up. It is clear that the collision was not caused, or probably caused, by the weather conditions as an unavoidable cause not within the control of the company or the operatives of the trains. There is no suggestion of accident or unavoidable happening free from the fault of the operatives of the trains. It is true that the passenger train did stop suddenly and after the freight train had left Cresson. The stopping, though, of the passenger train on the main line, does not appear in this record to have been through causes or circumstances which tend to or which certainly raise no presumption of negligence in the operation of either the passenger or the freight train. The passenger train was stopped because, as appears, “the bridge men were working on the bridge and had it tom up.” There appears no explanation that the bridge was suddenly, through freshet or others causes, put in this impassable or insecure condition for the passenger train to-pass over. The fact that the regular bridge gang “had it torn up” in their work upon it would indicate, in the absence of evidence to the contrary, that only usual and ordinary-repair work was being done on the bridge. That the bridge was undergoing repair work, not shown to be brought about suddenly by freshet or some other uncontrollable cause, and that its use was not clear for the passenger train, is a matter that the company could know and would be presumed to know. It could not be assumed that such condition of the bridge was too trivial to require previous report on. It is a matter of common knowledge that when the roadway and bridges are not safe for the trains to use. such fact is reported to the employees charged with dispatching trains or transmitting safe orders for their guidance. The information concerning the unsafe condition, through repair work being done or from other causes, of the roadway or bridges, is placed by the proper agents with the train dispatcher. The train dispatcher is charged .with dispatching trains or transmitting telegraphic orders therefor, and the object of train dig-patching is to place in the hands of conductors and engineers who run the trains proper and safe orders for their guidance. The source of such orders is the office of the train dispatcher, from which they emanate, and their destination is the hand of the conduct- or and the engineer of the train whose movements they are intended to direct and control. An explanation is not given nor a reason stated why the dispatcher allowed, in the facts, the passenger train or the freight train to leave Cresson until the bridge was clear for use, or especially to allow the freight train to follow the passenger train without notice that the bridge was not passable or clear for the passenger train to cross over. It was in the authority and power of the dispatcher to hold the freight train back *232 at Cresson, or to give train orders to stop near where the passenger train stopped. In the entire absence, as here, of any reason for the failure of the dispatcher to notify the freight engineer and conductor as to the. condition of the bridge and the likelihood of tho passenger train’s stopping there, negligence could be predicated on such failure. The allegations of the petition are broad enough to include a dispatcher. The allegations are that the collision was due to the negligence of the “agents and employees in the service of the defendant operating said trains.” A dispatcher, as a matter of common knowledge, is an “agent” of the company “operating” a train. lie is as much connected with the operation of a train as any employee actually on the train. A dispatcher orders the train held, or moved forward, and he does not allow the train to use the main line track until it is clear. An engineer does as much when he actually moves the train forward or stops the train. A flagman protects by warning an approaching train, while the dispatcher does not allow th.e train to use the main line track until it is clear and safe. We conclude that the court did not err, and that the assignments should be overruled. ’ Error is predicated on permitting appellee’s counsel, on cross-examination of medical experts testifying for appellant, to question said doctors concerning. their familiarity with the treatises of Dr. Murphy, and of ids standing as an authority on surgery and certain diseases, and about how their views corresponded with that of such authority as Dr. Murphy. The evidence complained of was not elicited on direct examination of appellee’s own doctors testifying in her behalf as sustaining evidence. Ry. Co. v. Robertson (Tex. Civ. App.) 200 S. W. 1120. The rule permits such evidence on cross-examination of a medical expert testifying for the opposite side “to test the knowledge of the so-called expert and to determine the weight of his testimony.” Ry. Co. v. Farmer, 102 Tex. 235, 115 S. W. 260; Ry. Co. v. Dooley, 62 Tex. Civ. App. 345, 131 S. W. 831. We have carefully considered the remaining assignments, and conclude that each of them should be overruled. The judgment is affirmed.