
    HARDIN et al. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
    
    (Court of Civil Appeals of Texas.
    Feb. 9, 1911.
    Rehearing Denied Feb. 23, 1911.)
    1. Master and Servant (§ 289) — Death of Trackman — Jury Question — Discovered Peril.
    Evidence in an action for death of a railway trackman struck 'by a car held sufficient to go to the- jury on an issue of discovered peril.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 289.]
    2. Trial (§ 143) — Province of Jury —
    Weight of Evidence.
    The weight to be given conflicting testimony is for the jury.
    [Ed. Note. — For other cases, see Trial, Dec. Dig. § 143.]
    Error from District Court, Bowie County; P. A. Turner, Judge.
    Action by Mary Hardin and others against the St. Louis Southwestern Railway Company of Texas. Judgment for defendant and plaintiffs bring error.
    Reversed and remanded.
    James D. Head and Smelser & Vaughan, for plaintiffs in error. E. B. Perkins, D. Up-thegrove, and Glass, Estes, King & Burford, for defendant in error.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
    
    
      
       Application for writ of error dismissed by Supreme Court.
    
   WILLSON, C. J.

In November, 1908, Pat Hardin, then in appellee’s service as foreman of a section gang, was run over by one of its cars, in its yard in Texarkana, and killed. Appellants, his widow and children, brought this suit to recover of appellee damages suffered by them on account of his death, which they alleged was due to negligence on the part 'Of employés of appellee. The trial court was of the opinion that it conclusively appeared from the testimony that appellee was not liable for the damages so sustained by appellants, and he therefore instructed the jury to return a verdict in appellee’s favor. The appeal is from a judgment rendered in accordance with a verdict as instructed.

It appeared from the testimony that ap-pellee had- in its yard two tracks running east and west, parallel with each other and about 12 feet apart from the center of one of them to the center of the other; that the men constituting the section gang were engaged in work near to and on the south side of the one farthest south of said two tracks, designated as the “lead track”; that engine No. 94 was slowly moved west from a point on said lead track east of where the section-men were at work, and that as it approached the place where the men were at work Hardin crossed in front of it from the south to the north side of said lead track; that after he had reached the north side of said lead track, qs said engine was passing him, moving west, he playfully caught hold of the foot of the fireman of said engine, who was then on the gangway of the engine; that the fireman at once disengaged his foot from the hold Hardin had on it, when Hardin, laughing and looking west, stepped backwards towards the east to a point near the one farthest north of said two tracks, designated as the “main line track,'” when he was knocked down and run over by a coal car loaded with sand, then being pushed west thereon by engine No. 90. Two switchmen, whose duty it was to keep a lookout for persons on or near the main line track and warn them of the approach of engine No. 90 and the car it was pushing, were on said car. One of them, Hosea, was sitting on the right-hand side of the car, 10 or 12 feet from the front end of same — that is, from the end farthest west; and the other, Bruce, was sitting on the left-hand side of the front end of the car. It was1 shown that the point where the accident occurred was within the .corporate limits of the city of Texarkana, and that an ordinance of that city prohibiting the operation within its limits of a railroad engine or ear at a greater rate of speed than six miles an hour was in force. The testimony was conflicting as to the rate of speed engine No. 90 and the coal car were moving at the time of the accident. It was sufficient to support a finding that same were moving as fast as 12 miles an hour or as slow as four miles an hour.

In their petition appellants charged ap-pellee with negligence because of various acts and omissions specified, of which, they alleged, its employés had been guilty; but it cannot be said that there was testimony tending to support the allegations made, except so far as they charged negligence in that engine No. 90 and the coal car were being operated at a rate of speed in violation of said ordinance, and in so far as they charged negligence in that Hosea and Bruce, having discovered Hardin to be in a perilous situation from the movement of said coal car and engine No. 90, in time, by means at their command, to have avoided injury to him, failed to resort to such means for his protection. We do not understand appellants to be in the attitude of insisting that engine No. 90 and the coal car at the time of the accident were moving at a greater rate of speed than six miles per hour. On the contrary, we understand their insistence to be that same were moving at a rate not exceeding four or five miles an hour. Therefore the question, and the only question, presented for determination is as to whether the testimony made an issue as to “discovered peril” which should have been submitted to the jury. The witness Ooston was the fireman on engine No. 94. He testified that when he took his foot' out of Hardin’s hand, the latter stepped back toward the main line track and laughed; that Hardin stopped near the main line track, stood still and looked at him as he passed on west on engine No. 94; that he (witness) then placed a coal pick he had in his hand in the place where it belonged on the engine and looked hack at Hardin over the eclge of the tank, saw that he was in danger of being struck by the coal car being pushed by engine No. 90 approaching from the east, and halloaed to him, “Look out, look out, Pat! ” that at this time the coal car was 15 or 20 feet east of Hardin; that after he hallooed at Hardin as stated, Pant, the engineer on No. 94, also hallooed at him, and about the same time he (witness) hallooed at him again; and that Hardin then stepped with his right foot over the south rail of the main line track and was struck by the coal car. The witness Souter was about 100 yards (east, it seems) from the place where the accident occurred. His attention was attracted to Hardin by the backing of the latter towards the main line track as the coal car and engine No. 90 approached him, because he thought if he kept on backing as he was he would be in danger from same; he did not know how many steps backwards Hardin took before he was struck by the coal car, but stated that as the distance between the lead and main line tracks was only 6 or 8 feet “he didn’t have to back very far.” He was asked by counsel: “Well, did he go as much as that?” and answered, “He backed clear up on that other track in my sight.” The witness was unable to say whether Hardin as he backed stopped and stood still at any time or not. Bruce, the switchman who was sitting on the left-hand side of the front end of the coal car as it approached Hardin, testified that as the car he was on approached Hardin, he saw him catch Ooston by the foot as the latter stood on the gangway of No. 94; that Hardin was then facing west with his back towards witness; that the car he (witness) was sitting on and engine No. 90 were moving towards Hardin not faster than at the rate of from four to six miles an hour — about as fast, he said, as a man could walk; that he heard Pant halloo at Hardin to “look out,” when the latter jumped or stepped right in front of the car which ran over him; and that he (witness) did not halloo at Hardin, because he did not have time and was frightened.

Prom the testimony referred to showing that Hardin was discovered by Ooston, Pant and Souter to be in a position of peril because of the coal car and engine No. 90, we think the jury might have found that Bruce, in the discharge of his duty to keep a lookout for persons in such a situation, discovered Hardin to be in a perilous position; and from the testimony, if they believed it, showing the coal car and engine No. 90 to.have been moving at the rate of only four or five miles an hour, to have been 15 or 20 feet from Hardin when Coston discovered that his (Hardin’s) position was a perilous one; and from the testimony showing -that after his situation was discovered by them, both Ooston and then Pant had time to halloo at him and that he had time to take the step that made his position more perilous, before the car got to the .point on the track where it struck him, the jury might have found that Bruce, after discovering Hardin to be in danger, had time in which, by the use of means available to him, he' could have prevented the occurrence of the accident. It appeared that Hardin had time, after the warning given him by Ooston and Pant, to step further into danger before the coal car reached him. His stepping in that direction probably was dué to the fact that, not realizing from whence he was to expect the danger against which he was warned, he instinctively moved from the direction from whence the warning came. Had Bruce been as prompt to warn him in the same way, the jury might have believed that he, instinctively, would have stepped out of the way of the approaching car.

There is testimony in the record in conflict with that we have referred to, but it was for the jury to say whether greater weight should be given to that referred to than to the conflicting testimony, or not.

The judgment is reversed, and the cause is remanded for a new trial.  