INTERNATIONAL & G. N. R. CO. v. WALTERS, 179 S.W. 854

YANTIS, J. Walters, the defendant in error, recovered a judgment against the plaintiff in error for personal injuries inflicted upon him while he was engaged in the service of said company as a car inspector and repairer at Sellars station, where there were switching yards containing nine side tracks.

At the time of his injury he was riding on the side of a. box car that had been kicked, with eight others, at a rate of speed alleged to be excessive, for the purpose of coupling them with several stationary cars further down the switch track, with the purpose in view of completing the train in this way and then continuing the train and the engine’attached thereto to Houston. The engine that was pulling said train was used in making the kick referred to.

After doing which, it then entered a side track which ran parallel to and in about ten feet of the track on which the defendant in error was riding the box car, with the purpose in view of going to the oil and water tanks to secure oil and water. It was Walters’ duty to inspect the stationary cars before permitting them to leave on their journey, and it was with this in view that he was riding one of the nine cars that had been kicked towards the stationary cars.

Before the car upon which Walters was riding collided with the stationary cars, he became alarmed, as he testified, for his own safety, believing that the speed at which the cars were going would make a violent collision with the stationary cars and might injure him with falling doors and other • débris; that in this frame of mind he alighted from the car and ran across the track on which the engine was moving, without looking for an engine, and without knowing that one was approaching. The engine struck him and caused the injuries for which he sued.

A portion of the ground of negligence alleged was that the engine crew failed to ring a bell or blow the whistle to warn him of their approach. The writ of error was granted by this court because it then inclined to the view that the evidence was insufficient to charge the engineer and fireman with notice that Walters would alight from the car on which he was riding, and that he would run across the track on which the engine was moving. Upon a closer and a more mature consideration of the evidence bearing upon this question, we have .reached a different conclusion.

It is quite true that if the engine crew were not in possession of sufficient facts from which an ordinarily prudent person, under the same circumstances which surrounded them, would have anticipated or foreseen that Walters might alight from the car, and might enter upon the track where the engine was moving, or near enough thereto to receive the injuries which he did receive, or some similar injuries, then the law would absolve them from the duty of ringing the bell or blowing the whistle, or, rather, no such duty would arise.

But while this is true, it is also a settled rule that if there was information which the engine crew possessed sufficient to place them upon notice that Walters might leave the car on which he was riding, and might place himself in a position of danger of being struck by the engine, then it became a question of fact for the jury to settle whether or not they should have foreseen that Walters would thus place himself in a position where he might be injured'.

It would then become a question of fact for the jury to determine whether, under such circumstances, the train crew was guilty of negligence in failing to ring the bell or blow the whistle, or otherwise warn Walters of their approach so that he might avoid coming in contact with the engine. Of course, it is true that, if there was no evidence which would charge the train crew with such notice, then the duty to warn Walters by ringing the bell or blowing the whistle, or otherwise, would not arise.

A careful investigation has convinced us that there was sufficient evidence to warrant the court in submitting the question of notice to the jury. The evidence was sufficient to support a finding by the jury that the engineer, notwithstanding his denial, did see Walters riding on the car.

The evidence shows that Walters was riding on the side of the box car next to the tráck on which the engine was moving, and that the engineer and fireman were riding in their places in the engine which was backing, but that they were looking in the direction in which they were going, and that two men named Tucker were riding on the tender facing and looking the way they were going, or in the direction of Walters. The track on which the engine was moving was but ten feet from the track on which Walters was riding the ear.

They all knew that Walters was a car inspector, and was riding down to inspect the cars that were to be attached to the train. They knew the cars that had been kicked were going at an excessive rate of speed, if we give full credit to the findings of the jury, for the jury had a right to reach this conclusion from the testimony of Walters that they were going about six miles an hour. It is reasonable that the engine crew should conclude that Walters would alight from the car, either when the kicked cars struck the stationary cars, or just before doing so, for the purpose of making inspection of the cars.

It might be dedueible from the speed at which the cars were going that the engine crew had notice that the collision would be violent, and that Walters might become alarmed for his safety, and might alight from the car to escape injury. Before .“Walters alighted from the car, the yardmaster, Harlan, who was riding on the first of said cars next to the place of collision, alighted and ran across the track in front of the engine.

From this it might be fair to conclude; and it was within the province of the jury to do so, that the engine crew had notice that Walters might attempt to do likewise, either from fright, or from some other reason.

The jury had a right to conclude from the evidence that the engine crew would have notice that when Walters alighted from the car to inspect the stationary cars there would be considerable momentum on account of the excessive speed that the cars were going, which might cause his body to reach the track on which the engine was riding, or so near to it as to raise a probability of some serious injury to him.

The tracks were only about ten feet apart, and of course the cars and engine would cover several feet of this distance, and Walters’ body would occupy a considerable portion of the distance, so that the space was so small where he could alight that it might be reasonable for the jury to conclude that in alighting from the ear, even without fear, at the speed it was going, he might come in contact with their engine.

That the engine crew might have foreseen that Walters might enter upon their track is intensified-by -the fact that the evidence .is sufficient to support a finding by tbe jury that Walters was ignorant of tbe approach of tbe engine, and that tbe crew knew tbis, and not being advised thereof be might not be as careful about avoiding tbe track on which tbe engine was moving as be otherwise would be.

Tbe plaintiff testified that he did not know tbe engine was on tbis track; that be supposed it was not on tbis track, but that it was still at its position for tbe purpose of connecting with tbe main train and continuing its journey to Houston; that it was customary for tbe engines, when coming into tbis town, to secure their oil and water before they entered it, and be supposed that they were already equipped with oil and water, and that they would not return to tbe oil and water tanks which they had passed in coming in.

He testified that it was customary for an engine, when moving in switch yards, to keep its bell ringing. Tbe engine crew saw that Walters’ back was to them, and tbis was some evidence of notice that be did not know of their approach. If they did not ring tbe bell or blow tbe whistle, as there was evidence to prove, tbis fact was some evidence that be was ignorant of their approach.

From such facts as these tbe jury bad a right to conclude that tbe train crew should have foreseen that Walters was ignorant of their approach, and that in bis situation he might alight from tbe car on which he was riding and cross the track upon which the engine was moving, or place himself near enough thereto to receive the injuries; and if they had such notice, as the jury would be warranted in concluding, then it was a question of fact whether an ordinarily prudent person would have warned Walters by ringing the bell and blowing the whistle, or otherwise.

The rule is well settled, from which this court has never wavered, that unless all reasonable minds would agree that the evidence was insufficient to prove that the train crew should have anticipated that Walters might leave the car on which he was riding, and place himself on the track, or near enough thereto as to be injured, then it became a question of fact for the jury, and the court would not be warranted in declaring as a matter of law that the engine crew could not anticipate such action on the part of Walters.

Measuring the point at issue by this rule, we have reached the conclusion that for us to hold as a matter of law that the engine crew had no evidence from which they could reasonably anticipate such action on the part of Walters would be to usurp the province of a jury in passing upon facts which it was their exclusive province to decide. We have considered the other questions involved in this appeal, but have decided that they are without merit, and that the Court of Civil Appeals made the proper holding on each of them.

The judgment of the Court of Civil Appeals and of the district court should be affirmed, and it is, accordingly, so ordered. <§=>]?or other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes