Gulf, C. & S. F. Ry. Co. v. Brooks

132 S.W. 95

• Court: Court of Appeals of Texas
• Decided: November 2, 1910
• Status: Published

Opinions

JENKINS, J.

Mrs. F. J. Brooks, widow of F. J. Brooks, deceased, and their two minor children, brought suit in the district court of Milam county to recover damages on account of the death of said F. J. Brooks, alleged to have been occasioned by the negligence of the defendant company, the appellant herein.

The undisputed facts show that F. J, Brooks was a section foreman on the Gulf,Colorado & Santa Fé Railroad, living at Cameron; that on the evening previous to his death he received orders from the road-master to report next morning with his crew at Milano; that he left Cameron about 6:20 a. m., and that just before starting he went to the depot and looked in at the window, presumably to see if there were any further orders for him, but that the operator was not in the office; that Brooks was proceeding with his crew towards Milano, going downgrade at a rather rapid rate of speed for a hand car, when one of his crew discovered a passenger train coming; that the passenger train when discovered was in a cut, and was running at the rate of 45 or 50 miles an hour; that the whistle upon said train had not been blown .before entering the cut; that the passenger train was behind time; that, upon said train being discovered, said hand car was stopped as quickly as possible, and that Brooks and his crew of six men jumped off of same and attempted to remove it from the track, and succeeded in getting two of the wheels off of the track, and two of the wheels between the rails, at which time, the engine being close upon them, all of them except Brooks ran and were not injured; that Brooks did not leave the hand car until it ■was too late for him to get out of the way, and that he was struck and 'killed by the engine; that, when Brooks got off of the hand car, he was in a place of safety, and that he voluntarily went to a place of danger, to wit, the center of the track, where he caught hold of the hand ear, and was endeavoring to lift the same off the track, up to a moment before he was struck by the engine.

The evidence was sufficient to raise the following issues of fact: (1) Was Brooks negligent in not sooner discovering the approaching passenger train? (2) Was the negligence of Brooks, if any, the proximate cause of his injury? (3) Did Brooks, after reaching a place of safety, return to a place of danger for the purpose of trying to prevent the train from being wrecked? (4) If so, was he guilty of negligence in so doing? (5) Was his conduct in this regard rash and reckless? (6) Was the engineer on the passenger train guilty of negligence in not sooner discovering the position and peril of Brooks? (7) Did said engineer make proper efforts to stop the train, after discovering Brooks’ peril? (8) Was the negligence, if any, of appellant’s servants who were operating the passenger train, the proximate cause of the death of Brooks? All of these issues were submitted to the jury, and by them determined against appellant, and unless the court erred in its manner of submitting these issues or some of them, or failed to submit some other material issue, or erred in refusing to grant a eon-ti nuance, or in the admission or rejection of material evidence, the judgment should be affirmed.

1. Appellant assigns error on the refusal of the court to grant its motion for a continuance; the same being its first application for a continuance. The contention of appellant upon this assignment is (a) said motion was in full compliance with the statute; and (b), such being the case, it was entitled to a continuance as a matter of right, and the court had no discretion in the matter. There are a number of cases in this state in which the language may be found that, when everything required by the statute is stated in a first application for a continuance, the court has no discretion in the matter, and the party making such application is entitled to a continuance as a matter of right. Doll v. Mundine, 84 Tex. 318, 19 S. W. 394; Cleveland v. Cole, 65 Tex. 403; Chilson v. Reeves, 29 Tex. 275; Prewitt v. Everett, 10 Tex. 283. All of these eases are based to some extent on Hipp v. Bissell, 3 Tex. 18. A careful examination of that case will show that what the court had in mind was not as to whether the court had any discretion; but as to whether it was a legal discretion subject to revision and to be determined by the rules as prescribed by the statute, rather than by the idea of justice or expediency that might exist in the mind of the court. Our construction of the meaning of this statute is this: When a party has stated in his application for a continuance everything which the statute prescribes, he has made out a prima facie case for a continuance, and upon appeal no weight will be given to the presumption, 'which ordinarily obtains, that the court has not abused its discretion in overruling such motion. The fact that the application complies with the rules prescribed by the statute in this regard, in the absence of conclusive proof to the contrary, will be taken as sufficient evidence that the court has abused its discretion; whereas, if the statute has not been complied with, it will be presumed, in the absence of a showing to the contrary, that the court has not abused its discretion. By way of illustration: One of the grounds for a first continuance is the absence of a material witness. Suppose the statute in this regard is fully complied with in a motion for a continuance, but the court nevertheless overrules the motion, to which a bill of exceptions is properly reserved. Immediately thereafter the witness appears and testifies in the case; is it not puerile to say that an appellate court must reverse the case on account of the refusal of the trial court to grant the motion for a continuance? And yet does not this necessarily follow, if the trial court had no discretion in the matter, and such motion entitled the maker thereof to a continuance as a matter of right? But, however this may be, we do not think the application in this case entitled the appellant to a continuance, because,’ first, it was not a literal compliance with the statute, in that it did not state the cause of the absence of the witnesses, and did not state that such cause was unknown; second, it did not show sufficient diligence, in that the absent witnesses were in the employ of the appellant. The case had been previously set down for trial on the day on which it was called, and it was not shown that the witnesses had been notified of that fact. Two of the witnesses on account of whose absence the continuance was asked appeared and testified in behalf of the appellees. The trial of this case lasted three days. The other witnesses mentioned in the motion for a continuance resided in the county and were in the employ of appellant, and it is not shown in the motion for new trial why they did not appear and testify. Their testimony, as set out in the motion, would have been cumulative, and not on matters as to which there was any serious contest. For all of which reasons we hold that the court did not abuse its discretion in overruling appellant’s motion for a continuance.

2. The error complained of in admitting the evidence of the witness Reed to the effect that he thought that a passenger train, under the circumstances of this case, could be stopped in about 1,060 feet, is harmless, inasmuch as appellant’s witness, the engineer who had charge of the passenger train, testified to the same effect, and there was no evidence to the contrary. The objection to Reed’s testimony was that he was not shown to be an expert in this matter. Dailey v. Starr, 26 Tex. 566; Patton v. Gregory, 21 Tex. 520; Hunter v. Hubbard, 26 Tex. 544; Tuggle v. Hughes, 28 S. W. 63.

There was no error in admitting in evidence appellant’s rule No. 479, requiring engineers to sound the whistle in rounding all curves where the view is obscured; the objection to the same being that there was no evidence that the curve was obscure. There was such evidence. Turner testified: “You •could not see around the curve on a hand ear. It is an obscure curve — one you cannot see around.” Reed testified to the same effect. It was the duty of appellant to make and enforce proper rule„s for the' safety of its employes. Schroeder v. Railway Co., 108 Mo. 322, 18 S. W. 1095, 18 L. R. A. 827. Appellant objected 'to the testimony of Smith as to the dangers to be encountered in coming in contact with a hand car under the circumstances as shown in this case; the objection to said testimony being that it was “speculative and immaterial.” It certainly was not immaterial, in view of the contention that the deceased, at the time he was struck by the engine, was trying to prevent such collision, in order to save the lives of persons on the passenger train. It was not speculative, except in the sense that all expert testimony may be said to toe speculative. Smith was shown to be an experienced engineer, and qualified to testify as an expert in this 'matter.

3. Appellant assigns a number of errors on the refusal of the court to give special charges as requested, all of which are overruled for the following reasons:

(a) Fifth assignment. Appellant asked the court to charge the jury as follows: “There is no evidence that the engineer of the passenger train failed to adopt all the means at his command, consistent with the safety of train, to stop the train after the peril was discovered, and on this issue you cannot find for the plaintiffs.” There was some evidence of such failure. Johnson, one of the hand car crew, testified that it seemed to him that the train did not slow up at all, and the way the dinner buckets were knocked into the adjoining pasture would seem to corroborate his view of the matter. The engineer in charge of the passenger train testified that, upon discovering the hand car and its crew, he applied the emergency brakes. It was shown that this would have thrown at least some of the passengers off of their seats. It is not shown that any passenger felt the shock of a sudden stop. The engineer testified that he could have stopped the 'train in from 700 to 1,200 feet. It was shown that he could have seen the hand car at a distance of 1,440 feet. It is true he testified that he did not see the hand car until he was within 5 ear lengths of it, about 300 feet, but the jury were not bound to accept his testimony, though no witness swore to the contrary. Becker v. Railway Co., 110 Ky. 474, 61 S. W. 997, 53 L. R. A. 267, 96 Am. St. Rep. 459; Schroeder v. Railway Co., 108 Mo. 322, 18 S. W. 1095, 18 L. R. A. 827; Brown v. Griffin, 71 Tex. 659, 9 S. W. 546; M. & B. Co. v. Landa, 40 S. W. 406; Insurance Co. v. Villeneuve, 29 Tex. Civ. App. 128, 68 S. W. 206; Coats v. Elliott, 23 Tex. 613; Stitzle v. Evans, 74 Tex. 600, 12 S. W. 327; Gonzales v. Adoue, 56 S. W. 548.

(b) In the seventh assignment appellant complains of the refusal of the court to instruct the jury that “it was the duty of the deceased to exercise a very high degree of care to remove the hand ear from the track and prevent the collision.” We do not see how appellant can' complain of the refusal to give this charge, as it would have been stronger in favor of appellees than any given on this issue; nor how it can reconcile this request with its contention in its tenth assignment of error that there was no danger in such collision, and that it was the duty of Brooks to seek a place of safety and not attempt to remove said hand car, and that Brooks did not attempt to remove the hand car to prevent the train toeing wrecked, as contended under its fourteenth and sixteenth assignments of error.

(e) The eighth assignment is overruled, for the reason that the issue therein sought to be eliminated was in fact eliminated by the failure of the court to submit the same to the jury in its main charge.

(d) The charge, refusal to give which is complained of in the ninth assignment of error, was properly refused because it requires the jury to ignore the right of the deceased to expose himself to danger to save the lives of others.

(e) The court rightly refused the requested charge as shown by the tenth assignment, because the same was on the weight of the evidence, in that it assumed that, if the deceased placed himself in a position of danger in attempting to remove the hand ear, such act was negligence. The eleventh and thirteenth assignments of error are overruled for the same reason.

(f) We hold that the requested charge, refusal of which is complained of under the twelfth assignment of error, was properly refused, for the reason that it assumes that the operatives of the passenger train owed the deceased no duty until they actually discovered his peril. In view of the fact that a train running behind time is liable to meet a hand car at any time, and in view of the fact that the engineer had failed to sound the whistle before entering the cut, as required to do by the rules of appellant, we think he did owe the deceased the duty to exercise ordinary care to discover him on the track.

4. The principal legal question involved in this case is as to whether the deceased in attempting to remove the hand car in order to, prevent the passenger train from being wrecked was bound to exercise that degree of care for his own safety that would be exercised by an ordinarily prudent man in the ordinary affairs of life. This question was so fully considered, and the law in such case was so clearly stated in the able opinion by the late Chief Justice of this court in ease of Railway Co. v. McVey, 81 S. W. 998, that we deem it unnecessary to do more than to -refer to that case for our views on this subject. The cases cited by Judge Eisher in that case, as well as many others that we have examined, fully sustain the text of that decision. Upon the authority of that case and the numerous decisions sustaining the same, we hold that where a party has not, by his own negligence, produced the situation which endangers the lives of others, he is justifiable in’ exposing himself to danger which must be apparent to him as a reasonable man, in order to save the lives of such others; and that in so doing, if his conduct Is not rash or reckless, he will not be guilty of contributory negligence. We find that the evidence in this ease raised these issues, and that they were correctly submitted to the jury in the general and special charges, and, the jury having found in favor of appellees on these issues of fact, their verdict will not be disturbed by us.

Finding no error in the record, this case is affirmed.

Affirmed.