
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. McCREARRY et al.
    No. 3934.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 13, 1931.
    Rehearing Denied Jan. 22, 1931.
    See, also (Tex. Civ. App.) 296 S. W. 935: (Tex. Com. App.) 1 S.W.(2d) 868.
    
      Richard Mays and A. P. Mays, both of Cor-sicana, B. A. Landman, of Athens, and Adair Dyer, of Dallas, for appellant.
    Bishop & Holland, of Athens, and J. D. Pickett, of Palestine, for appellees.
   WILLSON, C. J.

(after stating the case as above).

It will be noted that the jury found, among other things, that the engineer operating the train discovered and realized that McCrearry was in a perilous position in time, by the use of means at hand, consistent with the safety of the train and those riding thereon, to have so operated the train-as to prevent its striking McCrearry, and found, further, (1) that said engineer failed to use such means, (2) that such failure ~was negligence, and (3) that such negligence was a proximate cause of McCrear-ry’s death. Unless error entered into the findings specified, they furnished a sufficient support for a judgment in appellee’s favor for some amount, and it is not contended here that the sum found by the jury was excessive.

At the trial appellant objected to the submission of the issues resulting in the findings just specified, on the ground that the evidence did not warrant the submission of such issues, and with reference to such issues requested the court to charge the jury as follows:

(1) “You are instructed that the defendant ' railway company has in law a right to use its tracks upon and over crossings, as well as elsewhere, in the operation of its trains superior to that of the deceased McCrearry. And it is not incumbent upon the railroad company to slow down or stop its trains because, another person is walking or running along a roadway or pathway, running along with its tracks theh in use.” (2) “Though you may believe from the evidence that the operatives of the train, in approaching the loading shed, saw deceased in the space between the main line and switch track, nevertheless they had a right to assume that the deceased Mc-Crearry would not undertake to go over the main line track in front of the approaching train at the risk of sustaining injury, and no duty would be imposed upon said operatives, unless and until they knew that McCrearry was undertaking to go over the track in front of the engine, and unless the train could have been stopped before the collision there would be no liability upon the railroad company for the death of said deceased.” (3) “You are instructed that though you may believe from the evidence that the engineer in charge of the locomotive ought to have discovered the peril of the deceased, if any, still you are instructed that the defendant would not be liable for the negligence of the engineer, if any, in so failing to discover the peril of the deceased, if any. The defendant would be liable only in the event the engineer actually discovered and realized the peril of the deceased, if any, and thereafter failed to use all of the means at his command to stop the locomotive corisistent with the safety of the train and those upon it.”

Appellant insists the court below erred when he overruled its said objection and when he refused to give the requested charges to the jury.

The refused charges plainly were general in their nature, and for that reason, the cause being submitted on special issues, were properly refused; and, of the three, those numbered 1 and 2 were clearly on the weight of the evidence and for that reason also should not have been given to the jury.

As we construe the evidence, it furnished sufficient support for the findings in question, and we therefore think the trial court did not err when he overruled the objection specified.

It appeared from testimony a jury had a right to believe that appellant’s passing track and main line track at Ash ran east and west parallel with and about 8 or 9 feet from each other; that when cars were on both the tracks the clearance space between them was about 4 feet; that at the time of the' accident several refrigerator cars were parked on the passing track; that there was a traveled crossing over said tracks 50 to 60 feet west of a peach-packing shed where the refrigerator cars were parked, and another such crossing 150 to 200 yards west thereof; that many people were then and for several weeks before the accident occurred had been working at the peach-packing shed; that the space between the tracks was then being, and for many years had been, used as a way by people working at the shed and by the public generally; that McCrearry was in the space between the tracks drinking water dripping from one of the refrigerator cars when he discovered the train on the main line track, only a short distance from him, and moving silently and rapidly toward him; thát, terrorized, he at once began running away from the train in the space between the refrigerator cars and the main line track; that while so running he turned north and attempted to cross said main line track ■in front of the train and was struck by some part of the far (north) side of the engine pulling the train; that appellant’s tracks were straight and the view of the operatives of the train as it approached the place where McCrearry was drinking the water was’ unobstructed for a distance greater than 200 yards; that the train was moving at a speed in excess of 25 miles per hour as it approached the place where the accident occurred; and that its speed was not in the least diminished until after it struck McCrearry. The fireman testified that “in looking ahead” he did not see any one in the space between the passing and main line tracks, and that the first knowledge he had of the accident was when tile engineer asked kim “if we kit tkat man.” He looked tken, ke said, and.“saw kim (Me-Crearry) come around on my side.” Mc-Crearry, tke fireman said, “just come around tke end of tke pilot beam on. my side, looked like ke kind of staggered and fell. * * * He kad cleared the rails, but maybe not tke cross ties.” Tke engineer testified tkat tke train “was just coasting,” at a speed of between 10 and 12 miles an hour, as it approached Ask. He said ke saw four or five men cross the track 150 to 200 yards ahead of tke train as it moved east, but saw no one between tke tracks at tke point where tke refrigerator cars were parked, and tkat ke never saw McCrearry until ke kad passed two of said cars; tkat ke saw kim tken “come out from under tke car or come out from between tkem.” He (McCrearry), tke engineer said, “was not (quoting) on tke railroad track wken I first saw kim. He was running along witk tke engine in tke space between my train and these refrigerator cars. He came out from under tke car about two feet or three feet behind tke pilot beam.” McCrearry, tke engineer said, further, made from four to eight jumps “before ke went in front of tke train, ke out run me, got faster than I was — he got ahead of me.” Tke engineer-testified, further, tkat ke “knew there were a lot of people working at tke peach shed”; that ke “looked straight ahead down tke track,” as tke train approached Ask; tkat ke “saw some fellows cross tke track from tke south and go north of tke track before ke got to tkem” ; but did not see McCrearry in tke space between tke cars before kis engine got to tke crossing nearest tke peach shed; tkat if ke testified to tke contrary on tke first trial of tke case it was an error; tkat if ke kad seen kim and applied tke brakes at said crossing ke could have stopped tke train before it kit McCrear-ry; tkat ke “didn’t know what McCrearry was going to do wken ke first saw kim,” whether he was “going to jump on this side, tkat side or what side,” tkat ke did not realize wken ke first saw McCrearry tkat ke was in danger and tkat ke might hurt him, but might have said on tke former trial tkat ke thought there might be danger of killing kim when ke first saw kim, and might have said on tkat trial that tkat thought came into his mind tke moment ke laid eyes' on McCrearry running down tke track; tkat tke moment ke saw McCrearry running down by tke side of kis engine ke thought he ought to take precaution for kis safety, and did; tkat McCrearry was running at full speed wken ke saw kim, “so fast ke outran tke train.”

Tke testimony on tke former trial being substantially tke same as tkat specified above, tke Court of Civil Appeals at Dallas (296 S. W. 935, 937) said: “While tke testimony of tke engineer discloses tke fact tkat, at tke time ke actually discovered tke deceased, between the tracks and realized kis danger, ke could not have stopped tke train in time to have avoided tke injury, yet ke could have seen deceased some distance back from tke place ke testified ke saw kim and at a place where perhaps tke collision witk deceased might have been avoided. Under suck circumstances, it was for the jury to determine tke issue of discovered peril.”

It appearing, as we construe tke testimony, tkat McCrearry kad all but gotten across tke track before tke engine struck kim, we agree witk the Dallas, court tkat a question for tke jury was presented and tkat they had a right to conclude McCrearry would have escaped injury kad tke speed of tke train been in tke least reduced, and to conclude further tkat the engineer discovered and realized tke danger McCrearry was in in time, by tke use of proper care, to have so reduced tke speed of the train as to have avoided tke accident. International & G. N. R. Co. v. Tinon (Tex. Civ. App.) 117 S. W. 936; Houston & T. C. R. Co. v. Finn (Tex. Civ. App.) 107 S. W. 94; Id., 101 Tex. 511, 109 S. W. 918; St. Louis Southwestern R. Co. of Texas v. Ford (Tex. Civ. App.) 237 S. W. 655; Schaff v. Copass (Tex. Civ. App.) 262 S. W. 234; Texas & P. R. Co. v. King (Tex. Civ. App.) 18 S.W.(2d) 757; International & G. N. R. Co. v. Munn, 46 Tex. Civ. App. 276, 102 S. W. 442; Verble v. Schaff (Tex. Com. App.) 251 S. W. 1023; Houston, E. & W. T. R. Co. v. Kopinitsch, 114 Tex. 367, 268 S. W. 923; Hines v. Arrant (Tex. Civ. App.) 225 S. W. 767; Stevenson v. Houston & T. C. R. Co. (Tex. Civ. App.) 19 S.W.(2d) 207.

Appellant insisted in a motion “to suppress and strike” deposition of Mrs. Bertha Johnson, a witness for appellees, tkat it appeared tke witness did not swear to the truth of tke answer before the notary public who took same, and kad failed to answer specified interrogatories propounded to her, and further appeared that said notary public did not “indorse his name upon -the envelope containing the deposition as required by law.” We think it appears from tke bill of exceptions covering tke ruling complained of tkat tke witness did answer tke specific cross-interrogatories and did swear to tke truth of suck answers and to tke answers she made to tke other1 interrogatories, and further appeared tkat the notary public did indorse kis name on tke envelope containing tke deposition. Hence we think tke court did not err wken he overruled tke motion.

Other contentions relevant to the issue of discovery and peril are presented by assignments in appellant’s brief, but we think none of tkem shows error requiring a reversal of tke judgment.

As the findings of tke jury on tkat issue furnished sufficient support for tke judgment, it is not necessary to consider other contentions presented by the 147 assignments of error in said brief.

The judgment is affirmed.  