Houston, E. W. T. Ry. Co. v. Samford , 181 S.W. 857 ( 1915 )

^* Application for writ of error pending in Supreme Court. The following were questions as submitted to and answered by the jury:

"Question 1. Was the foreman of the crew in question, or the members thereof, besides the plaintiff, guilty of negligence in causing or permitting the hand car to run in such proximity as it did to the passenger train as the same proceeded eastward from the station at Timpson?" Answer of the jury: "Yes."

"Question 2. In the event you should answer the first question in the affirmative, then was such negligence, if any, a proximate cause of plaintiff's injury?" Answer of the jury: "Yes."

Appellant by its first assignment of error assails the finding of the jury respecting the proximate cause of the injury, contending that according to the evidence the efficient cause of the injury was the stopping of the passenger train. It is believed that it may properly be said that the finding of the jury respecting the proximate cause of the injury was not, as a matter of law, erroneous. It appears from the evidence that the regular passenger train started from the station of Timpson, going eastward on the main line. The foreman with the section crew then got on the hand car and followed in the rear of the passenger train on the main line. According to the foreman:

"As the passenger train pulled out from the station, we pulled out about 30 feet behind it; we were just following the train on to our work."

The foreman, who, according to the evidence, was a vice principal and had sole control and direction of the men, stood upright upon the hand car, facing towards the passenger train, and the six members of his crew, including the plaintiff, propelled the car. The main line track extending eastward from the station was straight and down grade. The foreman ordered the crew pulling the hand car "to follow the passenger train, so that No. 24 would not block us off from our work." When the passenger train had gone about 200 yards from the station, it suddenly slowed down or stopped. As pleaded by defendant and admitted to be true in fact by the plaintiff, the passenger train stopped as it did "in order to protect the lives of other parties, especially an old lady who ran in front of the train." When the passenger train stopped, the hand car was running down the grade under its momentum at the speed, according to the section foreman, of 8 or 10 miles per hour, and according to some of the crew, at the speed of 15 or 16 miles per hour. There is evidence going to show that the hand car was running about 60 yards behind the passenger train when it stopped, and there is evidence, by one of the crew, that "We were closer to it than 90 feet when it began to stop." The foreman testified:

"We were so close to the passenger train that when the train stopped or checked its speed there was nothing that could have been done to prevent a collision."

It was proven that east of the station there were four or five public streets of the town of Timpson, which the passenger train had to cross. The approaches to the tracks on some of the streets were hidden to the view of the engineer of the passenger train by a freight train standing on the siding, of which fact the foreman and the section crew knew. The foreman testified:

"I am familiar with the town, the streets and the public places in the town. When our hand car started out after that passenger train, and while it was following the passenger train, I knew that some woman driving a buggy, or some woman walking, or a child driving a buggy or walking, or a man walking or riding, was liable at any minute to cross or try to cross the railroad track at either one of those four or five streets that the passenger train had to cross after it left the station and before it got out of town. * * * I did not know that the engineer operating the train, should he see a woman or child or man about to go on to the track ahead of the train at any one of those four or five streets, would stop that train as quick as he could. * * * I will not say that the engineer would not stop; I don't know whether he would or not. I know that I would have stopped."

Thus, plainly enough, the section foreman, charged with the duty towards plaintiff of directing the prudent operation of the hand car, could reasonably have anticipated the very occurrence of the stopping of the passenger train at or near some of the crossings in the town limits. It is quite immaterial that the section foreman did not know that this particular woman would try to cross the track. He had every right to anticipate that some person was, as he said, "liable at any minute to cross, or try to cross, the railroad track at either one of those four or five streets that the passenger train had to cross." And the inference is clearly admissible that the foreman could fairly have assumed that the engineer of the passenger train would stop the train rather than continue and run over the person suddenly on the track, for he admits the fact that under such circumstances "I know I would have stopped." Showing, as the evidence does, that the section foreman had reasonable grounds to anticipate the fact of the probable stopping of the passenger train at or near a street crossing in the town limits, and that he, in directing the operation of the hand car, might have avoided the collision or lessened its effect through a lower rate of speed and by keeping at a greater distance to the rear of the passenger train, a clear legal reason exists for sustaining the finding of the jury that the real producing cause of the injury which followed the colliding of the hand car with the passenger train was the negligent manner of operating the hand car. Railway Co. v. Stevens, 37 Tex. Civ. App. 80, 83 S.W. 235.

The second assignment of error is to the point that the appellant would not be liable without negligence shown upon the part of the section foreman in charge of the crew. In the light of the evidence it is thought the verdict of the jury may fairly be interpreted as a finding that the section foreman was negligent in respect to causing and permitting the hand car to follow the passenger train too fast and in immediate nearness thereto, and therefore the assignment of error should be overruled. And, assuming for the moment that the verdict should be interpreted as finding only the plaintiff's co-workers negligent in operating the hand car in respect mentioned, nevertheless the appellant would be liable to plaintiff for their negligence, even under the federal act or the state law. Pedersen v. Railway Co., 229 U.S. 146, 33 S. Ct. 648,57 L. Ed. 1125, Ann.Cas. 1914C, 153; article 6640, Vernon's Sayles' Stat.; Freeman v. Shaw, 126 S.W. 53.

The third and fourth assignments of error must be overruled, for the purported bill of exception does not appear in the record to have been approved by the trial judge, and does not appear to have been filed in the court below.

The judgment is affirmed.