Houston & T. C. Ry. Co. v. Roberts , 1918 Tex. App. LEXIS 172 ( 1918 )

GBAYES, J.

An admittedly correct general statement of this case is thus made: Benjamin Boberts, a negro boy about 10 years old, lost his right arm under the wheels of a car of a moving freight train, and brought this suit by Isaac Boberts and Mary Boberts, his father and mother, as next friends, against the Houston & Texas Central Bailway Company, the Texas & New Orleans Eailroad Company, and the Galveston, Harrisburg & 'San Antonio Kailway Company, to recover therefor, laying his damages at §20,000. In the same suit his parents sought a recovery on their own behalf for the loss of the earnings and services of their son from the time of his injury to the date of his majority, laying their damages at $2,500. The suit was dismissed by the plaintiffs as to the defendants Texas & New Orleans Bailroad Company and the Galveston, Harrisburg & San Antonio Kail-way Company, and they passed out of the case. A trial before a jury resulted in a verdict and judgment against the Houston & Texas Central Bailway Company, in favor of the minor, for $1,500, and in favor of his parents for $500. From this judgment it has appealed.

After charging that the railway company was operating the freight train inside the limits of Houston, plaintiffs alleged:

“At a point near Trentham street, in said city, and while the said train was going in eastwardly direction, at a rate of about 15 miles per hour, it crossed the said Trentham street, or a street or way known and designated as Trentham street, which is a very much used public street, over which pedestrians and vehicles are constantly passing; that shortly prior to the time the said engine and cars had reached Trentham street, at a point where the track along which it was then and there traversing intersects said street, the said Benjamin Boberts, who was on said street, had started to cross defendant’s tracks which cross said street, when he was struck by the engine or one of the cars of said train, or some projection therefrom, and knocked down and his arm was drawn under the wheels or other portion of the said engine, or locomotive, or cars, and severed from his body at or near the shoulder joint, or his arm was so mashed and injured that it became necessary to amputate the same, and same was amputated as a result of such injury, and his whole body was otherwise seriously bruised and injured.”

Kecovery was predicated upon the alleged negligence of defendant, in substance: (1) In operating the train at a point within the limits of the city of Houston at a rate of speed in excess of six miles per hour, contrary to an ordinance of the city which forbade a greater rate of speed; (2) in failing to keep a watchman or flagman at the crossing to indicate to persons about to cross that a train was approaching; (3) in failing to keep and maintain an electric bell or other device at the crossing for the purpose of warning persons in general, and the minor in particular, of the approach of trains; (4) in failing to sound the whistle or bell as the train approached the crossing to warn the minor or other persons having occasion to cross the tracks of the approach of the train.

The railway company pleaded the general issue and contributory negligence, of the minor and of his parents. The court did not submit the first of these grounds of negligence to the jury, and it passed out of the case.

[1] By its first assignment of error appellant insists that the court erred in permitting the plaintiff Benjamin Boberts to testify as a witness, upon the ground that he did not understand the nature and obligation of an oath. This was a matter that rested in the sound discretion of the trial court, and, after a very careful reading of the record, we are unable to say that any abuse of that discretion, in permitting the boy to testify, was shown. That court having had opportunity to observe him, and having heard his testimony upon his examination, and his manner of answering questions, was in a better position to determine the qualification of the boy to testify than is an appellate court. The boy was twice upon the witness stand, and in qualifying the bill of exceptions allowed to the ruling in holding him qualified to testify the court said:

“On his second examination he freely told the facts as to the instructions received by him from his mother, and in both examinations impressed the court with the fact that he was disposed to tell the truth as he understood it to be; that he knew what a lie was; and that he would be punished if he told a lie on the stand.”

[2] We can neither say that the evidence touching the boy’s qualifications did not fully justify that conclusion, nor that, if it did, he was not a competent witness. The rule is that, when a child of tender years is offered as a witness, it is proper to ascertain whether he has sufficient intelligence and comprehension o£ the obligation of an oath to be prompted thereby to tell the truth. If he has intelligence enough to distinguish between good and bad, and to understand the nature and effect of an oath, he should be permitted to testify. The converse of this is equally true. Schouler, Dom. Rel. pp. 526, 527; 1 Greenleaf, Ev. § 367.

[3] We do not think the purpose of this rule would be subserved by disqualifying every youthful witness who could not explain the meaning of such terms as “the obligations of an oath,” “the pains and penalties of perjury,” or “the consequences of false swearing” — expressions which even adults would often find difficult of ready definition; but that, in instances where it appears that he is not .familiar with such phrases, he should in a proper way be instructed in simple terms, and if he then reasonably understands the difference between right and wrong, that it is wrong to swear falsely, and that he will be punished for it, he should be permitted to testify. This, we think, the effect of the holding in North Texas Construction Co. v. Bostick, 98 Tex. 243, 83 S. W. 12. The assignment is therefore overruled.

The second, fourth, sixth, seventh, eighth, and tenth assignments in varying forms, so couched as a result of different steps and procedure taken upon the trial, in net result and effect make the same final attack upon the judgment; that is, that no such negligence of appellant as could have been the proximate cause of the accident and injuries was shown. This general contention is summarized in the tenth assignment as follows:

“The verdict of the jury and the judgment of the court based thereon are contrary to the law and evidence in this, that the undisputed evidence shows that Benjamin Roberts, at the time of the injury, had crossed over all the tracks of the defendant, except the north switch track, and was standing near the most northern track, passing along- and beside the plank fence of the defendant company, and the switch track that led into the yards of the defendant company, and that Benjamin Roberts at the place as testified to by him and other witnesses was in a safe position, and that the failure to ring the bell or to have an automatic bell or other device, or to blow the whistle, or to keep a watchman or flagman at said crossing, could not have been the proximate cause of the accident and injuries, in that Benjamin Roberts testified that, by reason of a switch engine coming out of the yards, he stepped backwards and into a freight train that was passing, and that the engine and several cars in said train had already passed at the time he stepped backwards into said train, and that his injuries were produced by stepping backwards into and against the passing train, and, this being true, the negligence of the defendant, if any, could not have been the proximate cause of his accident and hie injuries.”

In other words, conceding the negligence of appellant in all the respects mentioned in the assignment, there was still no liability, because it could not have been the proximate cause of the boy’s injuries. But after a careful consideration of the evidence we are unable to accept this conclusion, and think that at least one ground of negligence proximately causing the injury was both pleaded and proved: The failure to keep a watchman or flagman at the crossing.

There were only two theories as to how the accident happened, and they were directly conflicting. The boy, Benjamin Roberts, testified that while he was attempting to cross appellant’s tracks from the south going north, at what is admitted to be a public crossing, he had passed over the main line track, when, in attempting to get out of the way of a switch engine moving west-wardly along another track next to and adjoining the main track, he backed into' the freight train moving eastwardly along the main line track, and was knocked down by it. In this statement he is corroborated by Janie Riggs. It is true that she said he was struck by a pipe on the refrigerator car, but that did not necessarily impair her testimony that he was hit by the freight train on the main line while backing away from the switch engine on the track parallel to and adjoining the main line, because the projecting refrigerator pipe was of course a part of the train.

The railway company’s witnesses, ujjon the -other hand, swore that there was no switch engine passing there toward the west at all at the time, but that the boy ran from the north side across the first track over to, and tried to hop on, the freight train going by toward the east, catching hold of the ladder and trying to get on the train, but stumbled and fell under it. The jury saw fit to reject this latter theory, and we are not, therefore, further concerned with it.

The two tracks along which these two oppositely moving trains were thus found to be running were quite close together at the place of the accident; being about five feet apart. It is undisputed, also, that the engine and several cars of the freight train had already passed the boy before he was struck.

[4] While the jury seems to have found, in response to special issue No. 30 submitted at the request of the railway company, that he did not know the freight train was thus passing behind him at the time he stepped backward into it, the majority of this court think that was an impossibility under the evidence, considering his close proximity to it, and therefore that the failure to keep an electric bell at the crossing to warn the boy of the approach of a train he then knew had already partly passed him could not have been a proximate cause of his injury; the writer, however, dissents from this view, believing there was room under the evidence for ordinary minds to differ upon the question of whether or not, in the probable excitement of avoiding the switch engine in front, the boy might have been oblivious of the presence of the freight behind during the few seconds required for its first fouT cars to pass him, and, if he was, then that the clanging of an electric bell, or other signal system, might have warned him. in time to have escaped injury.

[5] But, however that may be, there is no contrariety of opinion as to the effect of the other act of negligence the jury found appellant guilty of — -its failure to keep a flagman at that crossing. If one had been there, he could either have prevented the boy from going on the tracks-at all until the freight had passed, or hurried him on across ahead of the switch engine, or induced him to stand still between the two tracks, or possibly have stopped the train before it reached the point of the accident. M., K. & T. By. Co. v. Magee, 49 S. W. 156, affirmed by Supreme Court, 92 Tex. 620, 50 S. W. 1013. The grouped assignments raising the question under discussion are accordingly overruled.

[6, 7] Under its fifth assignment appellant contends that the boy was guilty of contributory negligence—

“in that he was either injured by hopping the train of the defendant and being thrown under the wheels of the train, or else that he carelessly and negligently stepped back against a moving freight train and was thereby thrown under the wheels of the train.”

But the jury discarded the suggestion that he hopped the train, as has been above mentioned, and then further acquitted him of contributory negligence in backing into it under the circumstances they found he did. Appellant’s insistence, however, is that since the 10 year old boy, Benjamin Boberts, was neither within that tender age at which the courts would, as a matter of law, hold him exempt from the charge of contributory negligence, nor yet old enough to be likewise held absolutely responsible for his acts, the question was one for the jury to determine from the evidence before them, and because (as the railway company contends) the plaintiffs did not affirmatively show that, for want of discretion, the negligent act of the boy in stepping back into the train was not imputable to him, it was entitled to a peremptory instruction. The following cases are tendered in support of this position: Railway v. Shiflet, 94 Tex. 139, 58 S. W. 945, and authorities cited; Dowlen v. Texas Power & Light Co., 174 S. W. 675; Waterworks v. White, 44 S. W. 181.

In so far as expressions in those opinions may approve the principle invoked by appellant, we think they were being applied to a very different state of case; that is, where it was sought to excuse the child entirely on account of his age from the effect of acts so plainly wrong that it would be presumed he knew better than to do, unless lacking in that degree of intelligence a child of his age would ordinarily have, as where an 11 year old boy of average'intelligence, being a trespasser thereon, went to sleep upon a railroad track, or where a 13 year old boy of like intelligence, after express warning not to do so, picked up a live electric wire; in such Instance, to excuse him, it must be shown that he did not have sufficient intelligence and discretion to understand and appreciate the danger. All those cases recognize, however, that a different rule obtains in a case like this one, and in the latter two the authorities so holding are tabulated. This accident happened at a very public and much-used crossing within a populous city, upon which the injured boy, along with the public generally, had the right to go, and between two moving trains going in opposite directions upon tracks only about five feet apart, and with no watchman to warn those using the crossing of the danger of approaching trains.

The contention of appellant as attempted to be applied here is fallacious, we think, in that it assumes this boy’s act was negligent, without taking into consideration his immature years at all; while we are not prepared to concede that, under the facts shown, it would have been negligence as a matter of law had he been an adult, yet that might be admitted, and still it would not necessarily be so as to a child of his age, for the reason that what is negligence in an adult is not always such in a child. We think the trial court made the proper distinction in the tenth paragraph of his charge to the jury, as follows:

“In passing upon the question of whether or not Benjamin Boberts was guilty of contributory negligence, you are instructed that if you find that he acted with the prudence that a child of his age, -intelligence, and experience would use under the same or similar circumstances, then he would not be guilty of contributory negligence.”

This test has been often approved in similar cases, and since in response to it the jury, in its general verdict for appellees, upon what we deem to be ample evidence, acquitted the boy of contributory negligence, the assignment assailing that finding cannot be sustained. Evansich v. Railway, 57 Tex. 128,44 Am. Rep. 586; Cook v. Navigation Co., 76 Tex. 358, 13 S. W. 475, 18 Am. .St. Bep. 52; Railway v. Fletcher, 26 S. W. 447; Railway v. Mother, 5 Tex. Civ. App. 87, 24 S. W. 82; Thompson v. Railway, 32 S. W. 192; Railway, v. Coleman, 51 Tex. Civ. App. 415, 112 S. W. 693.

The third assignment is devoid of merit, and is overruled without discussion.

Complaint is made in the ninth assignment that there was no evidence of any failure of appellant’s employés to ring the bell on the engine as it approached the crossing, in that the undisputed testimony showed the bell was ringing, and that the court erred in submitting the question of such failure as an issue to the jury.

[8] We are doubtful as to whether there was sufficient support for the submission of this question; but there having been other proper issues of negligence submitted upon which a recovery could be based, and which were supported by evidence, it will be presumed that the verdict was based on these rather than upon the single issue not so supported, and, if there was error in submitting the question as to whether or not the bell on the engine was rung, it became harmless. T. & N. O. Ry. Co. v. Siewart, 163 S. W. 624; Southern Ry. Co. v. Shinn, 153 S. W. 639; G., H. & S. A. Ry. Co. v. Watts, 182 S. W. 413, writ of error refused. The assignment is therefore overruled.

[9] The eleventh and last assignment presents as ertor the allowance of a recovery of $500 to Mary and Isaac Roberts, the parents of the boy, upon the ground that there was no evidence to show that the boy, Benjamin Roberts, would have earned any money, or would have been of any pecuniary benefit or assistance to his parents from the date of the accident until he reached his majority, had he not been so injured.

Such is the state of the record, and the assignment must be sustained; the mere fact that the boy was in good health prior to losing his arm at 10 years of age, standing alone as it did in the proof, furnished no adequate basis upon which a jury could'fix the money value of his services to his parents during the balance of his minority, because, had he not been injured, despite his youth and good health, he might have been a financial burden rather than a help to them for that entire period.

From the conclusions announced, it follows that the judgment of the court below should be in all things affirmed as to the minor, Benjamin Roberts, but reversed and remanded for another trial as to the parents, Mary and Isaac Roberts, upon the one issue of what amount of money, if any, the minor would have contributed, or would have been worth, to them during his minority, and it has been so ordered.

Affirmed in part, and in part reversed and remanded.

á&nFor other oases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes

<@=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes