Galveston, Harrisburg & San Antonio Railway Co. v. Tirres , 33 Tex. Civ. App. 362 ( 1903 )

This is an action for damages alleged to have resulted to appellee through the negligence of appellant. Appellee recovered a judgment for $4670.

The facts justify the conclusion that appellee was seriously and permanently injured by being negligently struck by a rapidly moving train belonging to appellant at a public crossing. At the same time the wagon and horses of appellees were destroyed. Appellee was not guilty of contributory negligence.

The accident occurred in 1896, and in the original petition, filed on September 9, 1896, the injuries were stated to be to the ribs and ankle of appellee. On April 1, 1902, an amended petition was filed in which, in addition to the former injuries set forth, it was alleged that appellee was injured on the head. In the original petition $4000 damages were sought; in the amended petition it was alleged that the damages amounted to $25,000. It is the claim of appellant that all damages arising from the injury on the head were barred by limitation. The proposition can not be maintained. The original petition stated the time, place and circumstances attending the injury; the amended petition merely amplified the statement of the injuries received at the same time and under the same circumstances. The plea of limitations was properly overruled. International G.N. Railway v. Irvine, 64 Tex. 529 [64 Tex. 529]; Texas P. Railway Co. v. Davidson, 68 Tex. 370 [68 Tex. 370]; Tribby v. Wokee, 74 Tex. 142; Elevator Co. v. Mitchell, 78 Tex. 64; Mexican C. Railway v. Mitten, 13 Texas Civ. App. 653[13 Tex. Civ. App. 653].

In the amended petition appellee alleged "that as a result of his injuries he has lost his mind and reason," and the allegation was sufficient to permit proof of the deranged condition of appellee's mind, even though it was only temporary derangement.

The court charged the jury "that it was the duty of those in charge of the engine pulling said train to blow the whistle of said engine and ring the bell of the same, at least eighty rods from the place where defendant's railroad and said public road cross each other where plaintiff was injured," and in the succeeding paragraph instructed the jury that if they believed there had been a failure to blow the whistle of the engine and ring the bell eighty rods from the crossing, "as provided by law," and such failure was the proximate cause of the injury, a verdict should be found for appellee. Appellant contends that the last instruction was erroneous, because it required the jury to find that the whistle was sounded and bell rung exactly at the distance of eighty rods from the crossing. The jury could not have been misled by the charge, because the law had been correctly given in the preceding paragraph and the jury was instructed that the whistling and ringing eighty rods from the crossing must have been "as provided by law." In the Ives case, 71 S.W. Rep., 772, the trial court instructed the jury that the law required the whistle to be blown and bell rung "at eighty rods before crossing a public road," and the appellate court properly held that it was erroneous because the law has no such requirement. In the O'Neal case, 91 Tex. 671, the trial court charged the jury that the law requires the whistle to be blown and bell rung "within eighty rods of a public highway crossing," and the Supreme Court held it erroneous. In the O'Neal case there was evidence that tended to show that the whistle was blown and bell rung before a point "within eighty rods" of the crossing had been reached. No such point was raised in this case, but the jury was compelled to find either that the whistle was not blown or the bell rung at all, or that the statutory signals were properly given. In still another section of the charge the jury were instructed to find for appellant if they believed the signals were given "as required by law, as explained to you above."

As appears from the conclusions of fact, this court is of the opinion that the jury was justified in finding that appellant was guilty of negligence in not giving the statutory signals before reaching the public crossing, at which appellee was damaged, and that such negligence was the direct and proximate cause of the injury inflicted. The jury was also justified in finding that the injury to appellee's head was received at the same time and place and through the same means that the other injuries were inflicted.

Appellee swore that the whistle was not blown nor the bell sounded by those on the train, and that there were sunflowers and sandhills on the side from which the train approached, and that a "hard" wind was blowing. He testified that before going on the track he turned his head from side to side to see if any train was approaching. He did not see nor hear it until it was almost on him. Pablo Jiminez swore that the whistle was not blown nor the bell rung before appellee was struck. This witness was shown to have sworn differently on another occasion.

Nicolas Madrid, a witness for the appellant, testified that he saw appellee just before and at the time of the accident; he was about 150 yards behind appellee, that he heard the train coming and that he saw it plainly. That appellee seemed to be looking down and whipping the horses; that he thought that appellee could have seen the train; that there were sunflowers and weeds that grew along the edge of the hill, but he did not think they were high enough to cut off the view, and that the track was raised. This witness stated that he did not think the whistle was blown and that he did not hear the whistle or bell.

The rear brakeman on the train said that he could not state positively that he heard the whistle blown or bell rung. The conductor testified to the same effect. The head brakeman was sitting on the tank of the engine, and swore that the whistle was blown, but could not say the bell was rung.

The only two witnesses that swore that the whistle was blown and the bell rung were the engineer and fireman.

The appellant contends that the testimony, a synopsis of which is given, brings the case directly within the purview of Galveston, H. S.A. Railway Co. v. Kutac, 76 Tex. 473, in which a number of witnesses swore that the signals were given, and the only evidence to the contrary was that of two witnesses who swore that they did not hear the signals, and it was held: "Under this state of the proof, we do not think an instruction recognizing the fact that no signals were made should have been given." Without expressing an opinion as to the soundness of the principle announced in that case, or entering into a discussion of it, it is sufficient to say the facts in this case are much stronger than in the Kutac case. The evidence was sufficient to justify the jury in finding that no signals were given.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.