Texas & N. O. R. v. Landrum

264 S.W.2d 530, 1954 Tex. App. LEXIS 1889
CourtCourt of Appeals of Texas
DecidedJanuary 14, 1954
Docket4932
StatusPublished
Cited by10 cases

This text of 264 S.W.2d 530 (Texas & N. O. R. v. Landrum) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Texas & N. O. R. v. Landrum, 264 S.W.2d 530, 1954 Tex. App. LEXIS 1889 (Tex. Ct. App. 1954).

Opinion

ANDERSON, Justice.

At 11:07 A.M., on January 11, 1952, while she was either walking across appellant’s railroad track or along it between the rails, in the business district of Livingston, Texas, Mrs. Jeanette Landrum was struck by the engine of one of appellant’s regularly scheduled, northbound passenger trains. The injuries which were thereby inflicted upon her resulted in her death on January 21, 1952.

Appellees, T. E. Landrum, Lucille Lan-drum and Avis Leon Landrum, and George L. Henderson, who are Mrs. Landrum’s surviving husband, minor children, and father respectively, sued appellant, Texas and New Orleans Railroad Company, to recover damages alleged to have been sustained by them as a result of her death. The expense incurred for medical, hospital and nursing ¿are accorded Mrs. Landrum as a result of her injuries, as well as that incident to her burial, was included in the- damages T. E. Landrum sought to recover. Upon the .trial, the defendant’s motion for an instructed verdict having been first denied, and the *532 plaintiff having waived any right they may have had to have issues pertaining to alleged acts of primary negligence on the part of the defendant submitted, the case was submitted to the jury solely upon issues under the doctrine of discovered peril and upon the damage issues. Based on the jury’s verdict, judgment was rendered against appellant railroad company for a total sum •of $36,169.30, apportioned as follows: T. E. Landrum, $3,669.30; Lucille and Avis Leon Landrum $16,000 each; George L. Henderson, $500. All except $1,500 of •the amount adjudged to T. E. Landrum represented expense incurred by him as a result of his wife’s injuries and death.

The appellant has brought forward six points of alleged error. In its first point it urges that there was no evidence to justify submission to the jury of the'issues under the doctrine of discovered peril •and that a verdict for the defendant should have been instructed. In its second point it urges that the award of damages in the amount of $32,000 to the two children, Lucille and Avis Leon Landrum, was :grossly excessive and should be set aside. In its third and fourth points it complains ■of the admission of certain evidence: The engineer on the train which struck Mrs. Landrum was permitted to testify, in effect, that sharp blasts of the engine’s whistle were effective to attract the attention of people; that such blasts had been resorted to upon other occasions to get people off the track in Livingston; and that he might have attracted Mrs. Lan-•drum’s attention with the whistle and enabled her. to get out of the way before she was struck if she had approached the track on his side and he had seen her. In its fifth point appellant complains of the submission to the jury of special issue No. 8, in its sixth point it complains of the failure of the trial court to set aside .and disregard the jury’s answer to such issue, urging that there was not sufficient •competent evidence to justify submission of the issue or to support the jury’s answer thereto. Special Issue No. 8 pertained to the expense incident to Mrs. • Landrum’s sburial. '

In passing upon whether or not there was sufficient evidence to require that the issues under the doctrine of discovered peril be submitted to the jury, and to support the jury’s answers to those issues, we must bear in mind that it was the province of the jury to judge the credibility of the witnesses and the weight to be given their testimony, and to resolve conflicts and inconsistencies in the testimony of any one witness as well as in the testimony of different witnesses. Ford v. Panhandle & Santa Fe Ry. Co., Tex., 252 S.W.2d 561. In discussing the question, therefore, we shall concern ourselves primarily with the evidence which tends to support the jury’s verdict.

According to his own testimony the fireman on appellant's locomotive saw Mrs. Landrum and realized she was in a position of peril when she was within three or four feet of the track, and when the front end of the locomotive was at or had almost arrived at the north edge of Church Street. The north edge of Church Street was 103 feet south of where Mrs. Landrum stepped onto the track, and, under what appears to be appellant’s theory of the case, it was 111 feet south of where she was when the locomotive struck her. Mrs. Landrum approached the west side of the track, along a footpath that traversed a vacant lot between two buildings. The evidence indicates that as she approached, she was walking at no more than a normal gait, and perhaps at only a leisurely gait. She was walking in a northeasterly direction, with her back almost toward the approaching train. The appellant introduced evidence to show that upon stepping onto the track Mrs. Landrum turned and, with her back toward the train, walked along the track, reading a letter she held in her hands, for a distance of six or eight feet before she was struck. There was no eyi-dence tending to show that she was ever aware of the approach of the train until the locomotive struck her. The evidence, in fact, tended to show the contrary.

The locomotive engineer did not see Mrs. Landrum until after she had been struck and the train had been stopped. Their rela *533 tive .positions were such that he could not see her beforehand. When the train had been stopped, Mrs. Landrum was found lying almost directly beneath the cab of the locomotive.

The speed of the train at the time the fireman first discovered Mrs. Landrum was variously estimated by the fireman, the engineer, and the conductor at from 10 to 18 miles per hour. The conductor, who professed not to have been paying much attention to it, first estimated the train’s speed at 10 miles per hour, and then at from 10 to 15 miles per hour. He said the train was running very slowly. The engineer’s estimate was that the train was traveling at the rate of from 15 to 18 miles per hour.

The fireman testified that immediately upon seeing Mrs. Landrum he hollered to the engineer to “hold it,” which was his way of calling for an emergency application of the brakes. An emergency application of the brakes was made, and the train was brought to a stop when the front end of the locomotive was approximately 200 feet north of the north edge of Church Street, or approximately 90 feet north of where Mrs. Landrum was when she was struck. Both the engineer and the fireman testified that the brakes were applied immediately after the signal to stop was given. The engineer expressed the opinion that he made a good stop, and other evidence was introduced by appellant to show that the train had been stopped, as quickly as it well could have been; more quickly, in fact, than was to have been expected. Both the fireman and the engineer expressed the opinion that when traveling no faster than it was upon the occasion in question, the train they were operating could be stopped within a distance of 100 feet after the fireman signalled for a stop. At a later stage of his testimony the engineer testified that his opinion was based on what he conceived to be the distance within which he did actually stop the train upon the particular occasion. H,e said it seemed to him that he stopped within a distance of 10 feet after receiving the signal to stop. ■

The fireman did not call for the whistle to be blown and it was not blown after Mrs. Landrum’s position of peril was discovered.

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Bluebook (online)
264 S.W.2d 530, 1954 Tex. App. LEXIS 1889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-n-o-r-v-landrum-texapp-1954.