Fort Worth & D. C. Ry. Co. v. Bell (14 S.W.2d 856, 1929)

DUNKLIN, J.

On the night of’February 8, 1926, in the city of Bowie, Grady B. Bell attempted to pass between two box cars of a freight train operated by the Fort Worth & Denver City Railway Company, and while so doing he fell, and one of his arms was so badly crushed under the wheels of the train that it had to be amputated just below the elbow.

He instituted this suit against the railway company for damages for that injury, and this appeal has been prosecuted by the defendant company from a judgment in his favor in the sum of $10,000.

The case was tried before a jury, to whom was submitted special issues. The issues submitted, with the findings of the jury thereon, were, in substance, as follows: (1) The accident happened at a public street crossing in the city of Bowie just south of defendant’s depot. (2) Immediately prior to the accident and prior to the time the train was set in motion, the defendant company willfully obstructed the public street crossing where the accident occurred for a length of time in excess ,of five minutes; and its act in so doing was the proximate cause of plaintiff’s injury. (3) Defendant’s employés were “negligent in the matter of time that its train obstructed” the public street crossing in controversy immediately prior, to the accident; and such negligence was the proximate cause of plaintiff’s injury. (4) The defendant was “negligent in the matter of giving adequate warning and notice by the blowing of the whistle or the ringing of the bell that the train was going to move forward,” which negligence was the proximate cause of plaintiff’s injury. (5) The defendant was not guilty of negligence in failing to have a watchman ,or flagman at the crossing. (6) The plaintiff was not guilty of negligence, proximately contributing to his injury, in attempting to pass between two of defendant’s freight cars at the time and place and in the manner he attempted to pass between the same on the occasion of his injury. (7) Plaintiff made no inquiry of the crew in charge of the train as to whether it would be safe for him to pass between the cars; but his failure to make such inquiry was not a failure to exercise ordinary care for his safety. (8) As a result of his injury, plaintiff sustained damages in the sum of $10,000.

The issues determined by the jury were duly presented in the pleadings of the parties.

Under appropriate assignments of error, it is insisted by appellant that the evidence introduced showed conclusively, as a matter of law, that plaintiff was guilty of negligence in attempting to cross the railway track, which was the sole cause, or at least a proximately contributing cause .of his injury, by passing between two box ears connected together and constituting parts of a connected freight train attached to a live engine which, at the time, was in the act of starting on its journey.

The record shows without dispute that on the night of the accident plaintiff had gone to Fort Worth on a passenger train, and alighted therefrom at defendant’s depot in the town of Bowie shortly after 9 o’clock at night. After his arrival he went to a garage and got his auto, and went to the home of a Mr. Sprowles to see him on a matter of business, after which he proceeded ,on his way to his home. At that time defendant’s freight train was on a siding track, having come from Amarillo, and was headed south towards Fort Worth. That siding divides the business section of the city of Bowie from the residence section, and it extends in a northerly and southerly direction; the business district being on the east side of the track, and the residence section, where plaintiff intended to go, being on the west side. There are four public street crossings on this siding, all within the boundaries of the city of Bowie; beginning from the north, they are designated as the stock pen crossing, the Smokey or Smythe street crossing, the depot crossing, and the cotton yard crossing.

We quote the following from plaintiff’s testimony, which is copied in his brief to refute appellant’s contention that, as a matter of law, he was guilty of negligence proximately contributing to his injury:

“When I got in my car I drove to the crossing on Smokey or Smythe Street. That street leads from the west side of the business section of Bowie. It was the principal traveled street of -the town at that time. I was going to Harry Sprowles. * * * When I drove up • to the track * * ⅜ a freight train was standing on the track blocking my way there. * * * I turned and drove west to the stock pen crossing, where I found the crossing blocked by the same freight on the same siding. I -then turned and drove back 'to the Electric Café and got me a drink of water. I just walked in the café and out and then drove to the depot. I don’t know the name of that street, but it leads off .one side of the square and goes right in the main building section. When I got to that crossing, it was blocked by the same freight train. When I found it was blocked by the same freight train, * * * then I turned around and went back by the underpass, which is d.ue east.

“I went to Harry Sprowles’ house but he wasn’t at home, and I sat there and waited for him thirty or forty minutes, and then started back to town. I then drove straight to the stock pen crossing. s ⅜ * When I got there I found it blocked by the same freight train. The rear end of the train was somewhere about three or four or five car lengths behind this stock pen crossing when I came up and found it blocked — I never counted them but that is my estimate. After I came back and found the stock pen crossing blocked, I then drove to Smokey Street. I was attempting to pass through and get back to the city — back to the business section. When I got there, I found the crossing blocked by the same freight train on the same siding, and then I passed up at the next crossing at the depot and went right on by the depot crossing and went to the next crossing at the cotton yards and attempted to cross’ there. I found it blocked by the same freight train on the same siding.

“I was nearer the engine then than I had previously been, and the engine was to my right. I could see the engine. The engiñe was just sitting still, wasn’t moving. There was no sign of life. It was just standing there and appeared to he dead.

“I did not hear any bell ringing or a whistle blown, and did not see any smoke. I then started to back up and turn around and I killed the engine of my car. I tried to start it until I run the batteries down, and then I got out and cranked it for some little bit. ® * * I worked with my ear until I considered it hopeless so far as getting my engine started again.

“When I found my car was dead, I decided to go to town to get someone to come and get my car. From this crossing there at the cotton yard I walked hack toward the end of the train, just one block — that was the main street that I had just passed up previously at' the depot, and it was still blocked.

“It was something like an hour from the time I first found it blocked until I came up to this main crossing and found it blocked again.

“When I got there I looked both ways, and there was so sign of life. I saw nothing. No noise or nothing. Everything was still. I can hear good. * * * I could have heard the bell or whistle if it had sounded.

“I then reached the point where I was going, and at that time where I had stopped and • started to go through, they have a flower bed of some kind — the point where I attempted to pass was right at the point where the sidewalk would project across the track if there had been a sidewalk there.

“After I looked in every direction and saw no sign of life and heard no sound of any kind, I believed I could go through there safely. .

“It was light at the point where I attempted to pass. In attempting to pass I caught hold of the step on one end of the car and the step on the other, on each end of the cars. ⅜ * * When I swung myself up those two steps were down something like, that high to me. I put my foot on a sill at the end of each car and was holding to a step, and I was leaning against the end of a car, and of course I was aiming to go on through to the drawhead and out — when I got to the drawhead I could jump on out, and right there at these sills is as far as I ever got.

“I don’t know a thing in the world about what happened at that time, only I know it jerked, and that is the last I knew.

“Prior to that there was no whistle blown or bell rung. I did not see any brakeman waving a lantern before I got up there. I did not see any sign of life about the train. It would have taken me something between five and ten seconds to have gone on through.”

Some of the testimony quoted above is also copied in appellant’s brief, and in addition thereto the following is set out in its brief as supporting the assignment now under discussion :

“I don’t know how long it took me to go from Sprowles’ house and make those crossings up until the time I killed my car — I don’t know how to put it plain, but I have an idea driving about seven blocks it ought to take a man five minutes working with the car. I did not see any member of the train crew during the time I was there working with the car. I saw the engine down there and saw that it was headed towards Port Worth; I seen it the first I drove up to it. It wasn’t making a. bit of noise. I never noticed any steam, but there might have been. If it was making any noise it wasn’t enough to attract my attention. I know how an engine sounds when it is fired up, when they are kind ,of blowing ofC, but I didn’t hear anything like that. I wasn’t paying any attention to that. I did not see any of .the train crew around there. I was looking .for someone, but I never seen a soul. There was a light in the cab of the engine, but I never saw any member of the train crew in the cab, not a soul. I don’t tell the jury there wasn’t anybody on the engine, but I say I never seen them. There was no men around there, whether connected with the train or not, that I saw. * * *

“I have ridden freight trains in shipping cattle and have ridden hack in the caboose, and I know that in the handling of any freight train there is more or less jar in the handling of it. I knew if that locomotive started up there that I was in a pretty bad shape. I knew before I got in there that I was in a dangerous place if that locomotive started. I knew that by having been around them and by common sense. I knew that when I made my move to throw myself up in there that night. When I did that I knew that every car was attached to a locomotive down at the other end.”

According to the testimony of the operatives .of the train, including the engineer, brakeman, and conductor, the train was cut and openings left at the several crossings which plaintiff testified were blocked prior to the time of his injury, and those openings were not closed dntil the train was ready to start on its journey southward, and the couplings were then made, one after another in consecutive order, and the times consumed in making those three couplings aggregated only a few minutes. They further testified that before the train started, the brakemen signaled the engineer with’ their lanterns, and that as soon as those signals were given two blasts of the whistle were sounded before the train was put in motion. However, in the determination of merits of the assignment now under discussion, the testimony of plaintiff must be locked to alone, to the exclusion of all testimony offered by the defendant bearing upon the issue of plaintiff’s contributory negligence.

Many authorities are cited in the briefs