Schaff v. Gooch

KEY, C. J. Mrs. Ethel M. Gooch brought this suit for herself and as next friend for two minor children to recover damages for the alleged negligent killing of Ben F. Gooch; and a trial thereof resulted in a judgment against the defendant, as receiver of the Missouri, Kansas & Texas Railway Company, for $20,000, $5,000 of which was apportioned to Mrs. Gooch and $7,500 to each of the minor children. There was a jury trial, and the case was submitted to the jury by a general charge, which required as a predicate for a verdict for the plaintiffs that the jury should find that one or both, the engineer Ballard or the brakeman Cantrell, were guilty of negligence which was the proximate cause of the death of Gooch, and that the latter was not guilty of contributory negligence; or that the brakeman Cantrell discovered Gooch in a position of peril in time, by the exercise of due care and diligence, to have taken steps which would have avoided the death of Gooch, in which event contributory negligence on the.part of Gooch would not prevent a recovery. [1] Appellant has assigned error upon, and in his brief urges numerous objections to, the charge of the learned trial court, all of which are regarded as untenable, except the second assignment of error, which is predicated upon a timely objection to the court’s charge submitting to the jury the question of discovered peril. After repeated and careful consideration of all the testimony relating to that issue, we feel compelled to sustain appellant’s contention, that the proof failed to show that Cantrell saw the deceased upon the track and discovered his perilous situation in time to have prevented his death. In considering this question we give appellees the benefit of the following statement, copied from their brief: “Deceased, Ben F. Gooch, was killed in appellant’s railroad yards by an engine which was backing down on what is known as the Texas Central main line, which runs through the middle of said yards. The railroad yards had been graded down below the surface from- 5 to 15 feet, and were practically covered with many tracks and switches. The ground was practically level and smooth, being covered with cinders and gravel, and running through the middle of said yard from southwest to northeast were two main parallel tracks about 15 feet apart; one, the west track, known as the north lead. There were some 16 switches leading off from said north lead in a southwest direction, The other main parallel line was known as the Texas Central main line; there were eight switches leading off from said Texas Cen — 784 — tral main line in a southeast direction; these switches, were known as rip track switches. “Between the two main lines aboye mentioned were situated the switch stands, which controlled the switches to the different yards. Those controlling switches on one side from the north lead were known as the yard switches, and those controlling the switches that led off from the Texas Central main line were known as the rip track switches. The rip track switch stands were located near the west rail of the Texas Central main line, and the yard switch stands were established near the east rail of the north lead; both of said switch tracks in the space about 15 feet wide between the two main lines that ran through the central part of the yards; said space between the two main lines being level and practically smooth and straight; no obstacle of any kind being in it from one end of the yard to the other, except the switch stands referred to. The yards were so constructed that a person could stand at any part of the yard when clear of cars and see all over the entire yard from one end to the other and from one side to the other; the same having a very slight grade sloping from the northeast to the southwest. ' “There was on the west side of the yards a wooden stairway with handrails on the same, running from the level of the yard up the embankment to the level of the surrounding country. Prom the top of said stairway in a westerly direction was a cinder path built by the company to a little jitney house about 300 feet away, built by the company for the accommodation and use of its employés, where they could go to take a jitney service car from the yards to their residences, some of which were in the city of Waco, 2 miles away. On the day the deceased whs killed, and shortly prior thereto, he telephoned to an employs in the yards whom he knew, and advised him that he was coming out with his father-in-law, Hon. S. P. Mills, to electioneer with the employés of the company in the yards; his said father-in-law being a candidate for one of the commissioners of the city of Waco. A few minutes before his death 'he, in company with his father-in-law, arrived at the jitney house, alighted, and started down the cinder path towards the stairway which led down into the yards. Just opposite this stairway on the other side @f the yard was located a big workshop, and a little south of that was a roundhouse, and other improvements for handling engines, etc. Deceased was not seen from the time he started down the cinder path until he had gotten out in the yards, at which time a long freight train, being then pulled by engine 835, pulled in on switch track 13, coming in from the. southwest end of the yard, going northeast; the different ends of these yards being known as the north and south ends. Said engine pulled up in a short distance of the north lead and stopped and was disconnected from said train; pulled out onto the north lead and went on north to cross over to the north end of the yard; pulled out across the crossover to the Texas Central main line, switches being thrown at all these points; and then backed down the Texas Central main line on its way to the roundhouse. The deceased, with his father-in-law, was on his way over to the car sheds and workshops, and the string of box cars just pulled in prevented them from going straight across. They were seen to be on the west side of said train which had just pulled in by the fireman and others in charge of said train. They were next seen coming around the end of said train after the engine had been cut loose therefrom, and had gone on up towards the north end of the yard. They wore next seen approaching the space between the north lead and the Texas Central main fine. At the time that they crossed over the north lead there was a switch engine pulling out of switch track 9, which was south from them, coming north on the north lead. They crossed over in front of this engine somewhere between 159 and 499 feet north of it; witnesses differing as to how far they were from the switch engine when they crossed the track into the space between the two main lines. They were next seen by the crew on the switch engine as the switch engine passed them while, they were walking down between the two main lines over close to the west rail of the Texas Central main line, upon which they were aft-erwards killed. They were seen in this space by the crow of the switch engine as they passed each other. They were next seen by Switch-man Murray Nance,, wfio wias setting the switches ahead of the switch engine, going on down in a diagonal way across the 15-foot space, apparently starting to the sheds, which were southeast of them and in a diagonal direction across the yard. They were run over and killed at a point about 15 feet north of the rip track switch No. 8, which is just a little north of the north lead switch stand No. 9. Mills’ body was left lying a little north of rip switch stand 8, and. Gooch’s body was 21 steps south from that point; the engine having dragged Gooch further than it did Mills. The evidence is conflicting as to the exact point where the deceased was when he was hit. Most of the witnesses place it just opposite switch stand 19 on the north main lead; others place it north of that point; but none south of that point. “The switch engine on the north main lead stopped upon the happening of the accident, and the engine was 9 car lengths north of Mills’ body. There is some conflict in the testimony as to how far engine 835 (that killed Gooch) ran after hitting him, but it is practically uncontradicted that the pilot of the engine was about even with the north end of the car shed, which was about opposite switch stand 8 on the north main lead. “The evidence shows conclusively, by all the witnesses, that it was a clear' day, with considerable wind from the southeast; that there was absolutely nothing to obstruct the vision of any of the operators of the engine S35 or prevent them from seeing Mills and Gooch from one end of the yard to the other, nor was there any obstruction to prevent Mills and Gooch from seeing the engine in the north end of the yard and all the way 'down until they were run over, had they been looking after the engine had gone across from the west to the east side of the yards. There was proof that they were walking along by the side of the switch engine and the train that it was pulling out on the north main lead near the west side of the Texas Central main line. Cantrell, the brakeman, was standing in the stirrup on the — 785 — Lind end of engine 835 in the proper place; he testified that he was looking directly down the track from the time he got on at the crossover until the men were run over; that he had good eyes and good ears; and that there was nothing to prevent him from seeing these men. The engineer on the switch engine testified that there was nothing to prevent him or any one else from seeing the men in the space along by the side of the track. The fireman on the road engine 835 testified that there was nothing to prevent him from seeing these parties walking along by or on the track, but that he was attending to other duties until just at the time of the accident. Other witnesses testified that he was hanging out of his cab window on the same side that Gooch and Mills were on at the time they left the crossover going south on the Texas Central main line; that he passed the switchman who was setting up the switch ahead of the switch engine, and he was in that position looking south down the track toward Gooch and Mills; the crew in charge of the switch engine testified that he was in that position when the two engines passed and that they spoke.. “Engineer. Heise, in charge of the.road engine, testified that there was nothing to prevent Cantrell or him from seeing the parties down by the track until they got so close, that his tender and engine cab would obstruct his view, as he was on the opposite side of the' engine from the path that Gooch and Mills were walking in. : “Cantrell, the switchman, testified that he -did not see Gooch until he was within 5 or 7 feet of the back end of the tender in the middle of. the track. “L. E. Jeans, a brakeman on the switch train, testified that the road was absolutely clear, and there was nothing to prevent Cantrell or the fireman in charge of 835 from seeing Gooch and Mills. Numerous witnesses testified that the track along where Gooch and Mills were killed was commonly used as a crossing place by the public, and that employés of the company were in and over all parts of the yard at all times, and that school children passed backward and forward between the tracks, there being practically no testimony to the contrary; and the only conflict in the testimony as to this point is the extent of the use of the track at that place by the public and people generally and the employés of the company at that time.” Cantrell, the brakeman, testified that as soon as he discovered the deceased and his companion on the track in fropt of the moving engine he gave the stop signal to the engineer; and the latter testified that upon receiving that signal he used all the means at his command to stop the train, but failed to do so in time to prevent the engine from running over and killing Gooch and his companion. No witness testified to seeing Gooch and Mills upon the track in front of the moving engine except the brakeman Cantrell, who testified as follows: “After I got my mgine on the main line of the Texas Central I rode the rear end of the tank and was looking down the Texas Central main line track. There was no train there to obstruct my view and there was no cars there. It was a plain open view there. I could not see the roundhouse. There was a track leading off of that track. The weather was fair. “The first time I saw Mr. Mills and Mr. Gooch was when they got on the track; walked on the track. They did not walk down the track. They did walk a little bit angling. They came on the track angling like they were going across. They looked like they were going over to the car sheds. At that time I was riding on the rear end of the tank of the engine. The switch engine had passed me, but I do not remember how far it had gone. They came to this track somewhere about No. 10 switch stand, and they were angling down across the track. I was looking right down the track. “The number of my engine was 835. I do not know exactly how long those engines are. I do not know how much one will weigh. It was my duty to ride back there and do whatever was necessary to do. If there was anybody on the track I was supposed to loot out for them. I was supposed to look out for people on the track and open and thro'w switches. They were about middle way of the track when I first saw them in the main line of the Texas Central and about middle ways of the track. As to whether or not I gave any signal from the time we1 got on the main line of the Texas Central until after we ran over these men, I gave a signal just when I first saw them on the track to the engineer. I gave the signal just as I jumped down on the ground and holloed. I gave the stop signal and jumped off. I did not give any other signal, just the stop signal. I did not look to see the engineer, but I guess I could have if I had looked. There was nothing to prevent the engineer from seeing me. I testified that the switch engine had passed me and was working steam and was pulling out a string of cars. They were on that lead-track which-is parallel with the Texas Central main fine, and no other person could cross that track on .account of those cars being pulled out by the switch engine. “When I first saw these men they were going across the track towards the shed, but I do not know where they were going. They were headed that way towards-the car sheds. 'They were not going at right angles, just kind of angling. They had their backs towards the engine and were angling across the track. “There was nothing there to prevent me from seeing them; that is, there ’ was no, obstruction there. Possibly I would have seen them. There was nothing there but two rails, some ties, and a string of cars as a background. That was the background. There was nothing in the way to prevent me seeing them if they had been walking along by the track. If- I had looked, I do not know about seeing them. I was looking down the track. I was looking south and they were south of me. 1 guess my eyes traveled over that portion of the track where they got on just before , the accident. I was on the fireman’s side of the track backing up. I was on .the engineer’s side, hanging on the side of the tank. On the fireman’s side of that main lead there was a string — 786 — of box cars being pulled out by tbe switch engine. “We bit them close to No. 10 switch; I believe it was a little bit south. That would be in the direction in which we were going. There was a string of cars on that main lead x-ight by the side of the engine after we stopped. At the time we hit them I believe they were moving a string of cars along there, and they were rattling and mating lots of noise. “My whole attention was centered right down that track just previous to the accident, and had been from the time I had started backing down, and X was looking right down the track. “I did not see these men cross over in front of the engine, nor I did not see any one else cross over in front of the engine. After I hopped off that engine I told the engineer that we had run over two men and started back to see what we could do for them. I hopped off before we hit them. I started and run up there. By that time some car men and several others were ther.e. “After the engine hit them it ran on two or three car lengths after I gave the signal. I was keeping a lookout down the track and the way I was going. I did not turn my head looking in any other way or at any other person from the time I started my engine back toward the roundhouse. The fireman was on the engine, and the engineer was on the engine, and I was on the side of the tender on the engineer’s side. X could see the engineer when I was looking in his direction. I could not seo the fireman. I knew that the brakes had been applied in emergency before they were struck. I could hear the engineer applying his brakes in emergency and saw him. “I stated that the engine was going 7 or 12 miles. That is purely my opinion. I do not undei-take to say that it was going over 7 ox-12. It might have been going less than 7, and it might have been going more than 12 miles an hour. I have no way that I could tell the exact speed my engine traveled. It is just purely a matter of opinion. “I was looking right down the track with all the eyes I had, looking in the direction my engine was moving. After- I got on the Texas Central main line and had started back this Texas Central main line was clear down to the track that leads off to the roundhouse. “I don’t know exactly how far this switch engine had passed me when this accident happened. I would estimate it at about two car lengths; something about that; but would not be positive. I did not say that that switch engine had gone about two car lengths from the back end of my engine before I jumped off. I mean what I said. By two car lengths that is where it has passed after we had stopped. They had gotten that far by. I mean that the switch engine had not gotten but two car lengths after my engine stopped at stand No. 10. Switch stand No. 8 is about even with the car sheds. My engine stopped about switch stand No. 8 after it ran over the two men. “I saw the switch engine before I hit the men on track No. 9. The first time I noticed it, it was pulling out track No. 9. I could see it from the time I got on the main line. When I got out on the Texas Central I first say it on No. 9 on the main lead.' It was coming towards me, and we passed about switch stand No. 10, and we struck these parties at about No. 10. “The first time that I saw the men that I afterwards learned were Mr. Mills and Mr. Gooch after I got into the yards was just about somewhere between 5 and 7 feet before we struck them. When I first saw them they were inside of the rails somewhei-e near the middle of the track of the Texas Central main line. When I fii-st noticed them they were kind of angling across the track, and they were a little closer to the west side than they were to the center of the track. ■ I did not see them as they stepped up on the track. They were already inside the rails when I first noticed them. There was something to prevent me from seeing them step up on the track — the tank of the engine would be in the way. I was riding on the side of the tender, the' east side, engineer’s side, standing on the steps of the tendei-, located on the side of the tender near the end, and as the engine was moving down the track south I was looking south in the same direction. “I do not know where Mr. Mills and Mr. Gooch were walking immediately before I saw them about 7 feet ahead of the tender of the engine. I do not know exactly what rate of speed our engine was going when I first saw them, but I judge we were going anywhere from between 7 and 10 or 12 miles an hour. I do not know about the speed. That would be just my guess or opinion about it. When I saw them on the ti-ack I holloed and gave, the stop, signal; holloed very loud and gave the signal to stop as I jumped off. The way the violent stop signal is made, as I made it then, is in this way (indicating), and the engineer got that signal and set the air into emergency at once. I could hear it. After I heard the air go into emergency the engine and tender ran somewhere between two and three car lengths. The ordinary car length is 86 feet. “When I leaped from the engine and holloed and gave that violent stop signal Mr. Mills arid Mr. Gooch did not do anything. After that I did not observe anything. I did not look at them because I knew it was impossible to stop before running over them. “After we got on the Texas Central main line I got on the east side of the corner of that tender on that stirrup, and I stayed there until just before the accident happened. When I got on the tender then there was nothing to obstruct my view down the track. I don’t know as I could have seen these men if they were there if I had been looking. I was looking south down the track and I could not see them. I have good eyes. I testified from what I saw as to the switch stands. The men would be bigger than the switch stands. I did not see them. “I was standing with both feet in the stirrup at the time I saw the men with both hands on the upright rod, and was looking south. I don’t know whether if I could see those men on the track when 7 feet away. If I would turn around and take hold I would be looking right across the end of that tender. We don’t ride that way. I had both feet in the stirrup and both hands on the upright rod looking south. “I said "at the time I holloed and jumped off the engine I was riding was going from 7 to — 787 — 12 miles an hour. I holloed right when I jumped off and made the violent stop signal as I went off. I jumped off backwards. X did not fall down. I jumped kind of sideways. “I testified in the other examination that I heard the air go into the emergency before we hit the men, and I testify to that now, and the men were 5 to 7 feet of the back end of the tender. When a. man jumps from a train that is running along like that he would probably go 8 or 10 steps. “These men at the time I saw them on the track seemed to be in close conversation, walking kind of slow with their heads kind of down and their backs kind of towards me. Now, as to why, if I did not see them walking up on the track, how it is that I could tell they were walking angling across the track, I saw them take two or three steps inside of the track. I did not see them take any steps outside of the rail. If I saw them take three steps that would be 9 feet. They were walking angling across the track on the inside of the rail. Now, as to whether, if I had been looking when I saw them three steps back up the track before we hit them, there would have been nothing to keep me from seeing them before that, I did not see them. No; there were no cars on the track. I was looking down the track and coming down towards these men; my eyes traveling over the territory that they were bound to have been on. I testified to that before. X do not say that I was looking right at the men. I did not see them. They did walk down the track a little bit angling. They came on the track kind of angling; that is correct. I testified also before that apparently they were going over to the car shed. “I never did discover either one of these men before I saw them some 5 to 7 feet in front of the tender of the engine. I do not know from what direction they came to this place between the north lead and the Texas Central main line. “Now, in riding those stirrups or steps X had my feet in the step and had my arm up this way (illustrating), holding onto the rod, I was then in a position to look down the track and also to look back to see the engineer. If there was any object or person just even with the tender’s west side or a little south of the tender on which I would be riding that way, going in the direction we were going at that time, X could not have seen it because the tender was in the way, between me and any object immediately across from me. I don’t know exactly how far ahead of the tender an object would have to be for me to see it between the Texas Central main line or on the Texas Central main line. I have never had an occasion to measure it; but when I first saw these men they were something like 5 to 7 feet ahead of the tender. * ⅜ * I heard the air go into emergency on my engine immediately. I leaped from my engine when I discovered the men on the track, and we were nearest switch stand No. 10, I think. The very moment I saw them I leaped from my place on the tender to the ground, giving the violent stop signal. When I leaped from the place I was a little bit south of the point where those men were struck. X knew that one had been dragged down the track. That is in evidence. When I leaped from my engine and holloed my engine was in motion, and as I leaped and holloed it continued in motion. Then when I heard the air go into emergency Mr. Mills and Mr, Gooch were not within my. range of vision. Í did not see them.” [2] The rule of law is well settled in this state that in order for a recovery to be had under the doctrine of discovered peril, which eliminates the defense of contributory negligence, it must be made to appear that the injured party was in a position of imminent danger, and that the defendant, or those acting for him, discovered the dangerous situation of the injured party in time to have averted the injury by the exercise of proper care. Texas & Pac. Ry. Co. v. Breadow, 90 Tex. 26, 86 S. W. 410; Morgan & Bros. v. M., K. & T. Ry. Co., 108 Tex. 331, 193. S. W. 134; Galveston Electric Co. v. Swank, 188 S. W. 705. As stated before, no witness other than Cantrell testified to seeing either of the injured parties upon the track in front of the moving engine, though several other witnesses did testify to seeing them walking between that and another track; the space between the two tracks being about 15 feet. Counsel for appellees urge the contention that when Cantrell looked down the track all the time, as he testified that he did, he must have seen Gooch and Mills where the other witnesses saw them; and therefore, if the other witnesses referred to swore the truth, Cantrell swore falsely when he said he did not see the injured parties sooner than stated by him. But,- if this be granted, it would merely prove that he saw them walking in the 15-foot space between the two tracks. That was a place of safety, and the mere fact that they may have been walking there would not have disclosed to Cantrell that they were in imminent danger. It is also contended that other facts and circumstances indicate that Mills and Gooch did not attempt to cross the track in question immediately in front of the approaching engine, but that they must have been on the track at a greater distance from the engine than that stated by Cantrell; and therefore, as he testified that he was watching the track all the time, he must have seen them and recognized their perilous situation. This evidence is too uncertain, and does not establish the fact that he could have seen them on the track and realized that they were in a perilous situation at such distance from the engine as to enable him, by the means at his command, to prevent the injury. Upon that issue the burden of proof rested upon the plaintiffs, and having failed to .make such proof, the trial court should not have submitted that issue to the jury. [3] It is strenuously insisted on behalf of appellant that the undisputed testimony shows that the - deceased was guilty of contributory negligence, as a matter of law. — 788 — Acting upon that theory appellant requested a special instruction directing the jury to return a verdict for him, and the refusal of that instruction is assigned as error. We do not care to recite all the testimony bearing upon that question, nor to enter upon an extended discussion of it. It is sufficient to say that after a careful consideration of all the facts bearing upon the issues of negligence as charged against the defendant, and contributory negligence charged against the deceased, we have reached the conclusion that the trial court pursued the proper course when it submitted those issues to the jury. [4] Some other questions are presented in appellant’s brief, all of which are decided against him. Before concluding this opinion the writer deems it proper to direct attention to the fact that if the case had been tried upon special issues it may be that this court would affirm the judgment, notwithstanding the error concerning the question of discovered peril. In other words, if the trial court had submitted the case upon special issues, and the jury had made special findings to the effect, first, that the defendant was guilty of negligence, and, second, that the deceased was not guilty of contributory negligence, and had made a third finding in favor of plaintiffs on the issue of discovered peril, we might hold that the latter finding was immaterial, and affirm the judgment because of the, other findings of fact. But as the case was tried in the court below and resulted in a general verdict for the plaintiffs, and as it is impossible for us to know, or for the appellant to show, 'that the verdict was not based upon the theory of discovered peril, appellant is entitled to have the judgment reversed. Railway Co. v. Johnson, 91 Tex. 569, 44 S. W. 1067 ; Railway Co. v. Greenlee, 62 Tex. 849; Emerson v. Mills, 83 Tex. 388, 18 S. W. 805. For the error- indicated, the judgment of the trial court is reversed, and the cause remanded for another trial. Footnotes [1] ¡g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes