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because of the failure to obtain a change of venue. The motion to change yenye was MISSOURI, K. & T. RY. CO. OF TEXAS v. not considered, as shown by the original

LUTEN et al. (No. 7961.) opinion, because the statement of facts was

(Court of Civil Appeals of Texas. Dallas. not approved by the judge nor signed by

May 4, 1918. Rehearing Denied counsel for appellant, and further, because

June 1, 1918.) the statement of facts in the purported bill 1. RAILROADS 369(2) - HIGHWAY CROSSof exceptions was in question and answer INGS-SIGNALS. form. Appellant refers to the fact that at

The omission of the statutory signals on aptached to the statement of facts, and at the proach of a train to a highway crossing is negli

gence 'per se only in cases of those using or first portion thereof, is a statement of facts about to use the highway, and not with reintroduced upon the motion for change of spect to trespassers. venue, and all of the facts as shown by said 2. RAILROADS O400(1) CROSSING ACCI

DENTS-QUESTIONS FOR JURY. statements of facts, and that said statement

In an action for the death of plaintiff's deof facts was duly signed by counsel for cedent through being struck by a railroad train, the state and counsel for appellant, and ap- evdience held not, as a matter of law, to show proved by the court on September 29, 1917. that deceased was a trespasser, and not at the There is some testimony with reference to public crossing when struck. change of venue in the statement of facts. 3. TRIAL Eww142 – DIRECTION OF VERDICT –

SUFFICIENCY OF EVIDENCE. The statement of facts at its termination is

To authorize the court to take a material issigned as stated by counsel and approved by sue from the jury, the evidence must be of the judge. The evidence in the statement of such a character that there is no room for ordifacts with relation to the change of venue drawn from it.

nary minds to differ as to conclusion to be was not reserved in a bill of exceptions as 4. RAILROADS 316(4) CROSSING ACCIrequired by the statute, and therefore is DENTS–NEGLIGENT SPEED. not noticed. The statute is imperative, and

In an action for the death of plaintiff's dehas always been so held that in order to cedent through being struck by a train at a

crossing, negligence might be predicated on the have a motion for change of venue consid- speed of the train, although the place of the ac

ed a bill of exceptions must be reserved cident was in the country, and there was no statand the evidence set out in the bill of ex- ute regulating the speed; it being the duty of ceptions. It is not sufficient to set out tes defendant to exercise ordinary care in regard

thereto. timony in a statement of facts, but the evi-5. RAILROADS Cw350(7) CROSSING ACCIdence must be reserved in a bill of excep- DENTS-QUESTIONS OF FACTS. tions. This is demanded by the statute, and In an action for the death of plaintiff's dehas always been so held. There is nothing

cedent through being struck by a railroad train

at a public crossing, evidence held to make a stated to show that appellant was placed in question for the jury as to whether statutory such condition that he could not obtain a crossing signals were given. statement of facts in a bill of exceptions 6. RAILROADS 350(33) CROSSING ACCIor a proper bill containing the evidence.

DENTS QUESTIONS OF FACT - DISCOVERED

PERIL. Therefore there is no question that the bill

In an action for the death of plaintiff's deof exceptions could have contained a state- cedent through being struck by defendant's ment of the facts approved by the judge. train at a public crossing, whether defendants What purports to be a bill is not approved after observing. deceased held, under the evi

did all in their power to avoid the accident by the judge, and it is not sufficient to in-dence, for the jury. clude the evidence in a general statement 7. TRIAL O 253(4) - CROSSING ACCIDENTS — of facts. There is no sufficient reason why INSTRUCTIONS. the court should reconsider this case upon cedent through being struck by defendant's train,

In an action for the death of plaintiff's dethat ground or grant a rehearing.

it was not error to refuse a special charge that, Complaint also is made that the court was unless the jury believed that decedent was in error in not sustaining appellant's propo- struck while upon the road crossing, they, could sition that the charge on manslaughter was the issue of discovered peril, and requiring a

not find for plaintiff; such instruction ignoring not sufficient. We hardly deem it necessary finding for defendant, unless decedent was at the to review this matter, but refer to the orig- crossing when struck. inal opinion for a statement of the condition 8. RAILROADS Om 401(1) CROSSING ACCIof the record as to the facts in this connec

DENTS-INSTRUCTIONS.

In an action for the death of plaintiff's detion. The case of Lane v. State, 29 Tex. cedent from being struck by defendant's train, App. 310, 15 S. W. 827. cited by appellant, an instruction that the law requires those in does not seem to be in point, and it is there- charge of railroad trains to use great care and fore deemed unnecessary to review that case to others, and if by the want of such care in

prudence in operating them, so as to avoid injury in connection with this record.

jury is inflicted upon others, without fault of We deem it unnecessary to review or dis- themselves, the company would be liable, was cuss other questions. We are of opinion

not erroneous, as being misleading. that the judgment affirming the case was Appeal from District Court, Hill County; correct.

Horton B. Porter, Judge. The motion for rehearing will be over- Action by Mrs. E. E. Luten and (thers ruled.

against the Missouri, Kansas & Texas Rail

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Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

way Company of Texas to recover for wrong-, long and two short blasts; that the deceased ful death. Judgment for plaintiffs, and de- appeared to have heard the said alarm fendant appeals. Affirmed.

signals given, as he veered from about the A. H. McKnight, of Dallas, W. E. Spell, center of the track to near the east rail of of Waco, and Collins, Morrow & Morrow, of the track, and appellant's servants believed Hillsboro, for appellant. Wear & Frazier, that he was leaving the track; that at the of Hillsboro, for appellees.

very moment they discovered he was continu

ing northward on the track, and did not inTALBOT, J. This is the second appeal tend to leave it, they did everything in their of this case.

184 S. W.798. The suit was power with the means at their command to instituted by Mrs. E. E. Luten, for herself reduce the speed of the train, stop the same, and as next friend for her four minor chil- and prevent the striking of the said Luten. dren, to recover of appellant damages sus- A jury trial resulted in a verdict and judg. tained on account of the death of her hus- ment in favor of appellees for $6,000. From band, and the father of said children, E. E. this judgment the appellant perfected an apLuten, who it is alleged was killed on April peal. 1, 1914, as a result of being negligently

The first assignment of error complains of struck by one of appellant's trains at a pub- the trial court's refusal to give a special lic dirt road crossing. The acts of negligence charge, requested by appellant, directing the charged and which were submitted to the jury jury to return a verdict in its favor. The as issues of fact, are: (1) That appellant's proposition advanced under the assignment servants in charge'of the train negligently ran

is as follows: it, in approaching and passing over the cross-law is insufficient 'to support a judgment in fa

"Where, as here, the evidence as a matter of ing, at a dangerous rate of speed; and (2) vor of plaintiff, it is the duty of the trial court, that said servants in charge of said train especially upon request, to instruct a verdict for negligently failed to blow the whistle or ring the defendant." the bell of the engine in approaching the The appellant, under this assignment and crossing as required by law. It is also charg- proposition, sets out the testimony at length ed, in effect, that appellant's servants in and argues that it shows conclusively that it charge of said train saw E. E. Luten, the was through no fault or negligence of its deceased, on appellant's railroad track and, servants that E. E. Luten lost his life; that after realizing his danger from the approach- j it discloses beyond dispute that the deceased, ing train operated by them, negligently fail- Luten, was not struck by the train while he ed to use the means at their command to was in the act of passing over the dirt road stop the train and avoid striking the deceas- crossing, but at a point 200 or 300 feet north ed, it, on the co rary, negligently ran said of this crossing and while a trespasser upon train against him, and inflicted the wounds appellant's property, and after the operatives which resulted in his death.

of the train had done all they possibly could The appellant answered, specifically deny- do, by the use of the means at their coming that the dirt road crossing, where it is mand, to stop the train and avoid striking alleged that the deceased was struck and Mr. Luten after discovering his perilous pokilled, was a public road crossing, or one sition; that if, by any possible construction of commonly and habitually used by the public the testimony, it can be said that the deas such. Appellant also denied that it was ceased, Luten, was struck by the train while guilty of any of the acts of negligence charg- he was attempting to pass over appellant's ed, and alleged that the injuries received by railroad track at the dirt road crossing, said the deceased on the day in question resulted testimony further shows beyond controversy from his own negligence and carelessness, in that appellant's servants in charge of said that he was a trespasser upon defendant's train gave the statutory signals in approachrailroad track at the time of the accident, ing said crossing, and was in no manner using it as a footpath; that he was extremely whatever guilty of negligence which proxideaf, which was unknown to appellant until mately caused the accident and death of the after the accident, but known to all of the said Luten. members of his family; that deceased had We make the following findings and statebeen warned by his family and friends that ment of the testimony: his conduct in trespassing upon the track The deceased lived west of the appellant's of appellant would sooner or later result in railroad and about 400 yards northwest of his death, but that, notwithstanding such the crossing in question. A short time bewarning, he continued to use the same as a fore the accident causing his death he left footpath. Appellant further answered by say home, carrying a shotgun. The railroad, ing that, when its servants operating the en- where it intersects the dirt road leading gine which struck the deceased discovered that from the deceased's house, runs practically the deceased was upon its track, they im- north and south, and the dirt road practicalmediately rang the bell, and kept it ringing ly east and west. At this intersection of until the deceased was struck, and blew the said roads the railway company had conwhistle of the engine, giving what is known structed, and maintained for many years the crossing in question, and the same had, afterwards learned was Mr. E. E. Luten; been commonly and habitually used by the that when he first saw him he was 150 or public for travel during all those years. 200 yards ahead of the engine; that it was About 9 o'clock of the morning the deceased very foggy when he approached the crossing; left home with his gun, a train operated by that when he first saw Mr. Luten on the the appellant's servants passed over the road track he could not tell that he was a man, crossing going north. At this time two re- could just tell that an object was on the ports of a gun at or near the crossing were track; that when he sounded the whistle he heard by some of the witnesses who testified veered to the right of the track, and he in the case, and immediately thereafter a thought he was going to get off, but did not train whistle, giving two short blasts, was do so; that when the deceased did not get heard at or about the same point, and the off the track he began the stock alarm whistrain stopped immediately thereafter. In per- tle and put on the emergency brakes and haps an hour, or less time, after this, the opened the sand box; that when he first body of the deceased, Luten, was found at saw the deceased the train was running 40 the estimated distance, according to testi- miles an hour, and that when the engine mony offered by appellees, of 40 or 50 feet struck him it was running about 20 or 25 north of the crossing and about 15 feet east miles an hour; that when he began the of the railroad track. When found, Mr. stock alarm whistle the engine was someLuten was dead, his gun broken, and both thing like 100 yards from the deceased, but barrels had been discharged. There was a that the deceased did not seem to notice it wound on his right side, below the arm and and continued up the track. He further said shoulder blade. The right leg was broken. the deceased was struck just north of, and The wound on the leg was on the right side about 200 or 300 feet from, the crossing; that of the leg. The deceased's hat was found he did all he possibly could to stop the train, on the ground about 15 feet north of the after he saw that the deceased did not leave crossing and on the east side of the railroad the track, to avoid striking him; that when bed. About 30 feet north from the crossing, the train struck the deceased he heard a reon the east side of track, some letters be- port that sounded like the report of a gun. longing to the deceased were also found. This witness further stated that the averThere was also near this place where blood age speed of the train was 28 miles an hour, was found an indentation in the ground at but that to make that average they had to the end of the cross-ties, as if some object run faster between stops and stations. On had struck there. There was another such cross-examination this witness testified that, place about 70 feet from the crossing and 16 when approaching the point where the Dalfeet east of the railroad track, and there was las and Waco road crosses appellant's railblood on the weeds there.

road, which was about a half mile south of H. B. Idaho, an undertaker, testified that the crossing at which it is claimed the dehe embalmed the body of the deceased after ceased was struck, he gave the usual crossremoving the clothing and washing it. He ing signals; that after that crossing was said the deceased "had one wound on the right passed he "cut the bell off,” and it was startside, under the right arm; it was an incision ed again after he blew the whistle for the like wound; looked like it was torn in the man he saw on the track; that “when I first body, right smart sized wound"; that he found blew the whistle I was about 150 yards from another wound on the right side of the head him [the deceased), and I was about that near the temple; that the right leg was bro- far from him when I could tell it was a ken, and that the wound on the right leg was man”; that when he saw the object on the on the right side of the leg. The railroad bed track, and blew the whistle, he must have or dump at the crossing was about 10 feet been just south of the crossing in question a high and on the morning of the accident there few yards; that he could not tell just how was a very dense fog. Mrs. Luten heard the far, but it was either a short distance south noise of the train as it passed, but on ac- of it, or about where the crossing is; that he count of the fog could not see the train. The did not take his eyes off the deceased, and deceased' was a sober, industrious farmer. that he never saw him look around at any His hearing was defective, but, if spoken to time; that he could not tell how far the in a loud tone of voice close to him, a con- pilot knocked him; that the deceased was versation could be carried on with him. on the right-hand of the railroad track, beHis wife, Mrs. Luten, said: "He could hear a tween the rails, when struck, and that the train blowing.

fireman, who was sitting on the left-hand side The engineer operating the engine drawing of the engine, could not have seen him at all the train on the morning of the accident tes after he was struck. He also stated that he tified that he had been familiar with the blew the whistle "between a half and a crossing in question for about 17 years; quarter of a mile south of this crossing that as he approached said crossing on the where the accident happened"; that the morning E. E. Luten was killed he sounded train hit the deceased in the back; that the road crossing whistle and rang the bell; when the train struck him he went immedithat he saw a man on the track, who he lately to the right, but that he could not tell for sure about that; that, after he fell back on the east side of the track and about 8 against the engine, he didn't see him any feet from the track; that he did not see Dr. more until he was picked up.

Thomas measure or step the distance from This witness, the engineer, was corroborat- the road crossing to where the hat was lying ; ed by the fireman as to the time the deceas- that about 15 feet north of the hat he saw ed was discovered on the track, the fog that where something had hit the ground near the prevailed, the blowing of the whistle, the end of the ties and knocked a hole in the statement that the deceased veered to the ground, and that there was blood on the right of the track, and the efforts made to ground there; that further north about 40 stop the train; but he stated positively that feet, and about 16 feet from the track on the the bell was rung continuously from the time east side, there was a place where something the train left the city of Waco until the hap- had hit the ground, and there was blood on pening of the accident. He also stated that, the weeds the Further phases of the testiwhen the deceased was struck, he "was mony will be disclosed in the discussion of thrown right off on the right-hand side of the assignments of error. the track. He was thrown off of the track [1] The law seems to be well settled that right about the place where he was struck." the omission of the signals required by statSeveral other employés of the appellant tes ute on approach of a train to a highway tified that the whistle was sounded just be- crossing can be treated as negligence per se fore the accident occurred and that their at-only in cases of those using or about to use tention was attracted by the continuous such highway; that is to say, the failure to sounding of it.

give crossing signals is, by law, made negliSam Chase, a witness offered by the appel- gence only "with respect to those for whose lant, testified that he was a passenger on the protection the statute was designed. As to train the morning of the accident; that he others, the omission may or may not constihad been railroading for 21 years, and was tute negligence in fact; the question dependat the time of giving his testimony in the ing on the circumstances of the particular case working for the appellant; that he as- case, and being one for the jury, and not for sisted in putting the body of the deceased on the court, to determine.” Railway Company the train; that at the time it was picked up v. Saunders, 101 Tex. 255, 106 S. W. 321, 14 L. it was lying about 75 yards north of the R. A. (N. S.) 998, 16 Ann. Cas. 1107. In this crossing. On cross-examination he said that case the Supreme Court takes occasion to dishe had seen trains running at a rapid speed cuss the question very fully, and to review a hit objects on the track and knock them quite number of decisions theretofore rendered upa distance. He further said:

on the subject by both that court and Courts "Yes; I make that testimony that it [the of Civil Appeals. Some of those decisions are body] was 75 feet north of the crossing, in face of the fact I got off the train and went im- approved and followed, some of them disapmediately to the body, helped the people put proved, and others distinguished. But the him on, and got on as quickly as I could, rule, as above stated, is firmly established. *

and we pulled out as soon as we There seem to be no peculiar circumstances could." Dr. J. H. Thomas, a witness introduced by struck by appellant's train at the dirt road

in the case at bar, if the deceased was not the appellant, testified:

That he had been the railroad surgeon since crossing, that raised an issue of fact for the about January, 1915; that on the day of the determination as to whether or not the failaccident he was called to see Mrs. Luten; that ure of appellant's employés in charge of the after he had been at her house about 20 or 30 train to give the statutory signals for said minutes he, with G. L. Johnson and some others, went over to the road crossing; that aft- crossing constituted negligence, and if the er they got to the crossing they went north evidence shows conclusively that the deceased on the railroad track and found a hat, supposed was struck by appellant's train at a place othto be Mr. Luten's hat, off the track on the east side; that the hat was picked up, and er than said crossing, and while he was a that they "went further on up the track, to trespasser upon appellant's track, as contendsee if we could see where the body was sup- ed by appellant, the deceased was not entitled posed to have been found, but didn't find any to the protection of the statute in question, thing, only a place where there was a disturbance in the gravel, like where people had walk- and the failure to give the signals as the train ed around.

I didn't step to see how approached the crossing gives them no cause far that was north of where we found the hat, of action, and their right of recovery depends but it was about 20 steps. I stepped the distance from the crossing to even with where we solely upon the issue of whether or not the found the hat, and it was 45 steps, or 130 feet. appellant's employés in charge of the train

Mr. Johnson was there, and I think could have stopped the same, by the use of he is the man that picked up the hat, and the means at their command, after discoversomebody picked up a candidate card there ing Luten's peril, in time to have avoided

. see on weeds; if there was blood on the weeds there, striking him, and failed to exercise ordinary there is no reason why I didn't see it." care to do so.

In this connection it may be stated that G. [2] Do the facts conclusively show that the L. Johnson, the man referred to by the wit- deceased was not struck by appellant's train ness Dr. Thomas, testified that the hat found at the dirt road crossing, but away from said

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appellant's railroad track? We think not. of the track, some distance; for it is an exThe testimony offered by the appellees on the ceedingly fair inference that the deceased's trial in which the judgment from which the hat was caused to fall from his head by the present appeal is taken is practically the collision, and that, if it fell directly to the same as it was on the former appeal, and ground, the location of the deceased's body what we said upon this question in our opin- indicates that it was pushed or thrown thereion on that appeal is pertinent and applicable after by the train the distance of 25 or 30 under the facts and circumstances shown by feet. Again, it is not at all improbable that,

. the record now before us, notwithstanding after the deceased was struck, his hat, after the testimony of appellant's engineer and fire- being dislodged from his head, was carried by man, who claim to have witnessed the un- the suction or agitation of the air produced fortunate accident. We then said, and now by the running train some distance in the repeat, that from the location of the wounds direction the train was moving, and this found upon the body of the deceased, and the would suggest that he was at the crossing, proximity of his hat and body to the crossing, or at least nearer to it than at the point together with other circumstances in evi. where his hat was found, when the collision dence to be considered, it may reasonably be occurred. At all events, we think it cannot inferred that he was at the crossing when be said, from the facts and circumstances struck by the train. The conclusion is war- shown, as a matter of law, that the deceased

. ranted that he traveled east after leaving was not at the crossing when struck by the his home along the road leading to the cross- railway train, ing until he reached the railroad; and that [3] Now it is settled law in this state that, he was going straight across the track from to authorize the court to take a material isthe west to the east side thereof when the sue from the jury, the evidence must be of collision occurred, and not walking north in such a character that there is no room for the direction the train was moving, is a rea- ordinary minds to differ as to the conclusion sonable, and not an improbable, deduction to be drawn from it. This has been affirmed from the facts and circumstances proved. in many decisions of our courts. The testiThe serious wounds, if not all of them, that mony of the witnesses introduced by appelwere inflicted upon the deceased, were on the lant, which was not before the court on the right side of the body. This is a strong fact former appeal, does not necessarily, we think, or circumstance tending to show that he was require a finding that the deceased was not standing facing the east, or moving directly struck by appellant's train at the crossing in across the railroad track, when struck. It is question. The testimony of these witnesses clear that, if he was walking north along the in important particulars is not in harmony railroad track when struck, the wounds in with the fair and reasonable inferences and flicted upon him would have been on his deductions to be drawn from certain relevant back, the back part of the head, and the facts and circumstances established by the back part of his leg. The fact that the testimony of witnesses offered by the appelwounds were on his right side is entirely lees. That testimony is to the effect that the consistent with the idea that he was stand- engine struck the deceased in the back, while ing or walking with that side of his body to the wounds inflicted upon the body of the deward the approaching train when the colli- ceased unmistakably indicate that they were sion that cost him his life happened.

inflicted on the side of the body and head, True, it is possible, or even probable, that and just where he would necessarily be he may have turned his right side towards struck, if, as appellees contend, he was walkthe train just before the collision; but that ing directly east over the crossing when hit he did so is no more to be inferred from the by the engine. The finding of the deceased's established facts and circumstances than hat, and letters belonging to him, and blood that he was going straight across the track. on the ground so near the crossing, are cogent And while it is possible, it is not very proba- circumstances indicating that the deceased ble, it occurs to us, that the deceased at- was struck by the train at or very near the tempted to cross the railroad track north of crossing, contrary to the testimony of appelthe dirt road crossing, at or near where his lant's witnesses. Besides, there are inconsistbody was lying when found. The railroad encies or contradictions in the testimony of bed or dump at that point was several feet some of appellant's most important witnesses, high, and evidently more difficult to pass and the jury were the exclusive judges of over than at the road crossing, and there is their credibility and the weight to be given nothing to indicate why he may have left the to their testimony. In weighing this testitraveled road to cross the track at such a mony, the relation of the witnesses to the applace. Moreover, his hat, as has been stated, pellant as employés, and their probable inwas found within 15 feet of the crossing, terest in its behalf as such, were proper matsome letters belonging to him about 30 feet ters for the consideration of the jury, and from the crossing, and his body at the greater their verdict indicates the testimony was undistance of about 40 or 50 feet therefrom, in- satisfactory, and that at least vital parts of dicating that, after being struck by the train, it were discarded. he was carried, before being cast to the side In view of all the facts and circumstances

203 S.W.--58

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