Gulf, C. & S. F. Ry. Co. v. Moss
Gulf, C. & S. F. Ry. Co. v. Moss
Opinion of the Court
T. G. Moss and wife brought this suit to recover damages alleged to have been sustained by them on account of the death of their minor son, Carlean Moss, who was run over by a train of freight cars owned by the appellant and being operated by its servants in its switchyard at Dallas, Tex., on October 19, 1913.
The petition, so far as is necessary to state, alleges, in substance, that prior to the injury complained of defendant had built a high board fence along its right of way, surrounding its switchyard in East Dallas, for the purpose of preventing children of tender years from going into and upon its tracks, but that on the date of the accident, and prior thereto, defendant had negligently permitted an opening to be made in such fence near the intersection of Ferris and Merlin streets, through which opening the public, including children and some of defendant’s employés, were accustomed to enter defendant’s yards, and that defendant had knowledge of such custom, and, having acquiesced therein, persons who entered its yards at that point became licensees; that on the day of the accident one of appellant’s trains had stopped in its yard, with the rear car about 50 feet south of the hole in the fence referred to, and that plaintiffs’ son, being of immature years and incapable of appreciating the danger of so doing, caught on one of the cars in the train, and thereafter fell beneath the wheels when the train was put in motion and was killed; that, under the facts and circumstances as they existed at the time plaintiffs’ son was run over and killed, it was the duty of the defendant company to keep a proper lookout upon its tracks in every direction and to prevent their son from entering upon defendant’s premises or going upon its railway tracks or upon its cars, but that defendant wholly failed at the time of the injury of their son to maintain and keep such a lookout or a lookout such as the facts and circumstances in evidence demanded, and. wholly failed to warn their said son of the dangers incident to entering upon its said premises and railway tracks and cars; and that the failure to keep such lookout and give such warning was the proximate cause of the fatal injury to their son, Carlean Moss. The defendant denied the issues of negligence as tendered by plaintiffs, and averred that by constructing the fence surrounding its yards, and by repeatedly closing the holes in the fence when the boards were torn off, and by repeated written and verbal warnings, persons who entered its yards were advised that their conduct in so doing was against the wish and desire of defendant, and that deceased therefore was not a licensee, but a trespasser, whose presence was never discovered until after the accident, and wherefore defendant was not liable. Defendant pleaded also contributory negligence both on the part of plaintiffs and their deceased son, barring a recovery.
The defendant objected to the submission of the case to the jury and to the court’s charge prepared for that purpose, and requested a special charge directing the jury to return a verdict in its favor; but the objections and special charge requested were overruled and denied, and the jury instructed, in substance, that if they should find that the servants of the defendant in charge of its train failed to exercise ordinary care to keep a lookout for and avoid injuring plaintiffs’ son, Carlean Moss, and such failure was the proximate cause of his injury and death, to find for plaintiffs. The jury’s findings were favorable to the plaintiffs, and their damages assessed at $2,500. The issues of contributory negligence on the part of Carlean Moss ¿nd of his parents were also submitted to the jury and resolved by the jury in favor of plaintiffs. There is little or no conflict in the evidence affecting the issue submitted to the jury. The plaintiffs’ son, Carlean Moss, on the 19th day of October was struck or run over by a train of freight cars being moved along the main track of defendant’s road in its switchyard in East Dallas, and as a result of the injury received died about 3 o’clock in the afternoon of that day. At the time injured Carlean was seven years, three months, and a few days old. He lived with his parents at 2731 Ferris street, about 50 yards west of Merlin street, and there were many other houses on Ferris street fronting the defendant’s railroad tracks and occupied by families, neighbors of the plaintiffs; in other words, that portion of the city of Dallas contiguous to or near defendant’s said switch-yard was thickly populated. Ferris street runs practically east and west, and Merlin street runs about north and south. The defendant’s switchyard was on the south side of *1130 Ferris street, and between Ferris street and the main, track upon which Carlean was struck and injured there was a switch track called the scale track. Along the south side of Ferris street and between it and the defendant’s switchyard there was a plank fence about 6 feet high, built by the defendant with a view of preventing persons from going upon its premises and railroad tracks. This fence runs east and west parallel with the defendant’s railway tracks and switch-yard for several blocks. About on a line with the west side of Merlin street, which intersects Ferris street, two or three planks had been knocked off the fence, making a hole therein about 3 feet wide, through which people could easily pass. This hole had been in the fence some months probably prior to the accident in question. It seems that about as fast as the employes of the defendant would nail the planks on and close the hole some person or persons unknown to them would knock them off. Many persons were in the habit of passing through this hole and thence upon and across defendant’s railroad tracks going to church and other places. Some of the employés of defendant also passed through this hole in the fence going to and returning from their work, and children habitually passed through the hole and upon defendant’s premises and tracks at that point. This was known to defendant’s employes, but without their consent and over their protest. Signs1 were posted warning persons of the danger of going upon the railroad tracks, and numerous means were resorted to by defendant to give warning of such danger and to prevent trespassing upon its property. These warnings and efforts, however, had been up to the time of the injury to Garlean Moss ignored. On the day Garlean Moss was injured the switch crew of defendant came into the switchyard with a train of some 18 or 20 cars. This train came from .the west going east. . The train crew consisted of B. S. Miller, engineer, G. M. Dooley, fireman, R. D. Vaughan, foreman, and L. Combs and G. M. Mays, switchmen or helpers. Mr. Vaughan controlled the movements of the train, and as the train moved east he and one of the “helpers” rode on the front end of the engine, or on the south side thereof, and the position of the other “helper” was on the rear part of the train. The engineer and fireman occupied positions in the cab of the engine — the engineer on the right side and the fireman usually on the left side. When the train causing the death of Carlean Moss came into the switchya'rd, it was stopped on the main track with some of the cars east and some of them west of Merlin street and the hole in the fence. Some of the witnesses stated that the train was stopped with the middle opposite the hole in the fence. The train remained standing in this position two or three minutes, and was then started forward again. Just after the train was thus started screams of a child were heard by G. M. Mays, the .rear helper, and Mrs. Long, a neighbor of the plaintiffs, and probably other neighbors. It was discovered that this child was Garlean Moss. Prior to the time he screamed he had not been seen near or upon the railroad track by any employs of the defendant. The first employe of the defendant that saw him was G. M. Mays, the rear “helper.” He testified that the first “I knew of this accident was when the boy holloaed”; that, when the car passed, the boy was sitting near the switch stand, something like 8 or 10 feet, holding up.the stub of his leg like that (indicating), holloaing; that prior to that time he had not seen or heard the boy; that as he came up there he was facing the fence and looking behind, looking out for the rear end of the train; that he was sitting on the running board in the middle of the car or something near the middle of the car, and on top of the car; that, when he saw the boy there on the ground and heard him holloa, the next thing he did was to report it to his foreman. The witness Mrs. Long having heard the screams of the little boy, ran to him, and a little later his father came and carried him home. He was thence, it seems, carried to St. Paul Sanitarium, and shortly thereafter died. When seen sitting near the switch stand, and when picked up by by his father, he was, with reference to the hole in the fence, about 50 feet east of it. About ten minutes before the accident Mrs. Gooch, a neighbor of the plaintiffs, saw Carlean Moss and his little sister and told them “not to go inside of the fence there; some day one or the other of them would get killed.’'’ She further stated that she did not see Garlean after he got inside the fence, and that the first thing that attracted her attention was his screams. At the time the accident occurred the members of the train crew were in their respective places on the train, and no one of them occupied a position from which he could have seen the accident, except possibly the fireman and the rear helper, Mays, and no special effort was made by either of them at the time the train was started after it was stopped in the yards to ascertain whether or not any person was on or near that portion of the train that struck Garlean Moss, or on or attempting to get on the train at any point between the engine and rear ear. Just when he went to the train or what he was doing at the time he was struck or run over does not appear. He was1 not struck by the engine, but by some car of the train that was west of the hole in the fence.
The contention of the appellant is, in substance: (1) That it did not owe Garlean Moss, or the plaintiffs, the duty to keep a lookout to discover his presence at the place where he was struck and injured by the train, and that, as there was no evidence adduced showing or tending to show that his *1131 presence was discovered in time to have prevented injury to him, the trial court erred in not instructing the jury, as requested, to return a verdict in its favor; (2) that the evidence adduced at the trial in support of ap-pellee’s action was not legally sufficient to warrant the submission of the case to a jury, because it does not appear therefrom, even if it was appellant’s duty to keep a lookout to discover the presence of Garlean Moss, that the failure to keep such a lookout was the proximate cause of his injury and death, and for this reason the court should have instructed a verdict in its favor.
“But, aside from this, the failure to keep a proper lookout, either from incapacity or other reason, could only be deemed the proximate cause of the death, when it appeared that the keeping of it would have prevented the unfortunate occurrence, and no inference of this fact can be drawn from the evidence. What were the boys doing as the train approached them? How long were they on the track before they were struck? What was their position? An answer to these questions must be found before it can be said that there was a failure to keep a proper lookout, and that such lookout would have discovered them [the boys] in danger in time to have enabled those controlling the train to have saved them; and for such answer the evidence may be searched in vain. This fact of causal connection between an alleged negligent act or omission and an injury can no more be presumed than can the act or omission itself.”
This language is applicable here, and, the evidence contained in the statement of facts sent to this court failing to show' what Car-lean Moss was doing when struck by appellant’s train, how long he had been in close proximity to the train, or what his position was when struck, it does not appear that the keeping of a proper lookout would have pre *1133 vented the sad and unfortunate accident which resulted in his death. If the views expressed' are correct, and we believe they are, it becomes unnecessary to consider other questions presented in appellant’s brief.
Holding, as we do, that the evidence was insufficient to authorize a recovery by appel-lees, and the case having been fully developed, the judgment of the court below will be reversed, and judgment rendered in this court for the appellant.
Reversed and rendered.
ig^Kor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
<§rs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Reference
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- GULF, C. & S. F. RY. CO. v. MOSS Et Ux.
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