# Schaff v. Copass

> Court of Appeals of Texas · April 17, 1924 · 262 S.W. 234

URL: https://www.frixlaw.com/law-library/cases/3909895

## Case

- **Full name:** Schaff v. Copass.
- **Court:** Court of Appeals of Texas
- **Decided:** April 17, 1924
- **Citations:** 262 S.W. 234; 1924 Tex. App. LEXIS 518
- **Precedential status:** Published
- **Opinion:** Opinion of the court by McCLENDON
- **Judges:** McClendon
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3909895

## Opinion text

McCLENDON, C. J.
[1]
This suit was instituted on bebalf of Carl Copass by bis mother, Mrs. Annie Stephens, as next friend, against C. E. Schaff, in his capacity as receiver of the Missouri, Kansas
&
Texas Railway Company of Texas, to recover compensatory damages for personal injuries sustained by Copass on the night of August 14, 1922, as a result of being run over by an engine operated by the receiver. Copass had fallen asleep while seated on the track, and therefore, under the doctrine announced in Railway v. Shiftlet, 94 Tex. 131 , 58 S. W. 945 , was guilty of contributory negligence as a matter of law, which precluded recovery except on the theory of discovered peril. The cause was tried to a jury upon special issues, who found that the fireman and engineer discovered Copass on the track in time, hy exercising ordinary care, to avoid striking him, and assessed his damage at $20,000. The trial court rendered judgment in favor of plaintiff in accordance with these findings. The case is properly before us upon appeal from this judgment duly perfected by the receiver.
Fourteen propositions are urged by appellant as grounds for reversal. These propositions present the following contentions:
' First. That the evidence will not support any recovery.
Second. That the finding that the engineer discovered the peril of Copass in time to avert the injury was without support in the evidence.
Third. That the second special issue was erroneous in various respects.
Fourth. Th,at appellant’s second requested special issue was erroneously refused.
^ Fifth. That it was error to charge the jury that any fact in issue before them might be established by circumstantial or direct evidence, or both.
Sixth. .That the court erroneously admitted in evidence a picture of an electric headlight shining down a railroad right of way.
Seventh. That certain remarks in the argument of plaintiff’s counsel were prejudicial to defendant.
' We will consider these contentions in the above order.
[2]
In deciding the correctness of the first contention, we must view the evidence and the deductions which may properly be drawn from it most favorably to the plaintiff. From this viewpoint we make-the following statement of the evidence:
The occurrence happened a little after midnight, at a place known as Pershing switch, on the outskirts of the city of Austin, whore the defendant’s line of railway joins the Houston & Texas Central or Southern Pacific line. For convenience we will use initials in referring to the several railway! ■ companies. The S. P. line at this point runs east and west, and is used from the switch at Pershing west by the M., K.
&
T. trains. A public road crosses the S. P. track at right angles, immediately west of this switch. This road is tarviated, and about 40 or 50 feet wide. Immediately east of the road is a cattle guard, and just east of the cattle guard is the switch stand, which is situated on the left or north side of the track. From this point the M.,
K. &
T. rails diverge from the S. P. rails toward the north and upon a curve. This curve is a continuation of a curve of the S. P. rails extending west from the switch for a distance of several hundred feet. It is a two degree curve, and practically uniform. The M., K. & T. north-bound trains leaving Austin over the S. P. line and passing on to the M., K. & T. line at Pershing switch travel east on the S. P. line until the engine reaches a point immediately west of the road in question, where the train is stopped; the porter goes ahead and throws the Pershing switch; the train then proceeds east across the road on to the M., K. & T. track; the porter boards the train when it reaches him; and the rear brakeman relines the switch, and then catches the rear car of the train, which is not entirely stopped, but slowed down, for this purpose. On the night in question Copass, a youth of 19 years, who lived at Temple, and who had just been discharged from the state .militia, went out to Pershing switch for the purpose of stealing a ride to his home at Temple. He waited some time for a train, and finally crossed the cattle guard to the east of the road and sat down on the track, either at the frog, which intersects the north rail of the S. P. line and the south rail of the M., K.
&
T. line, or some 23 feet beyond the frog on the south M., K. & T. rail. In this position he went to sleep, and was not awakened until the train in question was practically upon him. He endeavored to get out of the way, but was not successful, and his feet were run over and mashed, resulting in serious permanent injuries. The train in question was a passenger train, consisting of 13 coaches. The engine was some 80 feet in length, the day coaches 60 and the sleepers 70 feet in length. The length of the entire train, exclusive of the engine, was about 900 feet. According to the engineer’s testimony, the equipment upon the train was, as he expressed it, “100 per cent, efficient”; each coach was equipped with air, and the brakes in perfect order. The usual procedure above outlined was carried out in the instant case; the train was stopped just west of the tarviated part of the roadway, which placed the front of the engine approximately 75 feet west of the switch; the porter went forward and threw the switch and gave the 'signal to the fireman, who was on the left or north side of the engine, and he in turn gave the starting signal to the engineer. The porter testified
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that lie Aid not see anything on the track ahead of the train. The testimony of the fireman was to the effect that he was keeping a lookout ahead from the time the train started until Copass was struck, but that he did not see any object on the track until just at the time the front part of the engine was taking the M., K. & T. rails, at which time he saw an object on the track just passing out of his view behind the running board or front part of the engine. He also testified that he was keeping a lookout before the train stopped, but saw no object on the track. The following quotations give the substance of his testimony concerning his part in the affair:
“The picture you hand me I have seen before, and it correctly represents the situation there as I have seen it. About the time the engine was leaving the H. & T. C. track going onto the Katy track I saw something on the track ahead of us. The object that I saw on the track was in my view for just a little bit. The turning of the engine on the curve and the running board in front of the engine naturally got the object out of my sight in a very little bit, The turning of the engine made the engine come between me and the object. The object was indistinct, and it did not stand out clear. It was a small looking object to me —looked to be a very small thing. When I noticed the object on the track I hallooed to the engineer that there was something on the track, and then I went to his side. I would not be positive how far it was from where I was in the engine cab over to the engineer’s side, but just about two steps, one down off.my box and then one across the cab; just the width of the cab. The engineer sits on one side of the cab and I sit on the other. I told the engineer when I got over to where he was that I thought there was something on the track. I attempted to see what it was from his side of the engine from out of the window, the gangway. I leaned out the gangway, and about the time I leaned out of the gangway; I saw something run in front of the engine, and it was this boy, Carl Oopass. The boy went over next to the H. & T. O. track, over to the right. He was dressed in soldier’s clothes. When I saw the boy come in front of the engine I should judge that he was somewhere close to where the box is sitting on the track in the picture. I do not undertake to say that that is the exact point, but it was somewhere along there. Immediately when I saw this object on the track I hallooed to the engineer, and I jumped right over to where he was, and told him again. I do not know whether he heard me when I hallooed or not, but anyway I went right over to where he was and told him again. The gangway is behind the engineer, between the tender of the engine and the engine itself. There was nothing that I could have done even if I had known that it was a person, other than what I did do. I could not have acted any quicker than I did.”
On cross-examination he testified:
“I can see in the picture where the man is sitting on the frog. If this boy. had been on the frog that night while I was. looking out in that direction I think I would have seen him. If he should have been 'at that |>lace he would have been in my view looking down the track. I could have seen him, I think, while the engine was standing still and also when it moved forward. AVhen I first saw the boy, or rather the object on the track, I immediately hallooed to the engineer. When I first saw the boy to recognize him to be a boy was after I had gone over to the right side .of the engine and looked out of the gangway. .1 could not say just how close the boy was in front of the engine when. I first saw him coming from in front of the engine, but it seems to me that he came out from about the head end of the boiler of the engine— looked like he came out from under the engine. He was sort of stooped over. It looked like he was on his all fours, but at that time he was in the dark of the engine. I did not get him mixed up at that time with a box or a dog, and knew that it was a human being notwithstanding he was in the dark of the engine and crawling. If 'he had been sitting out on the frog I do not know whether he would have been in the dark of the engine or in the light of the headlight. I don’t know how far it is from the road crossing to the frog. I just stated a little while ago that if the boy had been on the frog I would have seen him after we had stopped the engine, and I still think I could. I can’t say whether the light was shining on the frog or not. I can’t tell you how far a light will shine in front of an engine. * * * I stated on direct examination that when I first saw the boy, or what I afterwards found to be a boy, was just at the time the front part of the engine was turning onto the switch and going onto the Katy track. That was about the time that I saw him. That is what I testified on the last trial. When the front part of the engine turned off of the Southern Pacific track and onto the Katy track is when I first saw the boy and hallooed to the engineer. That is as near, as -I can trace the point. At that time I did not know that this was a boy, and I did not know what it was. After I told the engineer I had done all I could do to bring that train to a stop. I hallooed to the engineer and gave him such information as should have required him to have used every means in his power to stop that train. I have been running on a train as a fireman for about 12 years, and I have run an engine myself. I am not an extra engineer, but I have had 12 years’ experience as a fireman. I know what the engineer’s duty was with reference to stopping the train when I gave him the infor-' mation that there was something on the track, and it was his duty to stop the train. I gave him such information that night, which was the same thing, I suppose, so far as stopping the train was concerned,, as if I had hallooed to him that there was a boy on the track. The information I gave him should have required him to use all of the meaijs within his power to stop that train immediately.”
He further testified that the headlight was not as bright as usual on the night in question.
The testimony of the engineer, who was on the right or south side of the engine, was to the effect that he never saw Copass until after he was struck by the engine. We quote from his testimony;
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“The way I first learned that there was any trouble was when the boy passed across on my side; I saw him. Just before we struck the boy the fireman said that there was something on the track; he did not know what it was; he was not positive. It seems to me that the engine passed over the switch at the time the fireman told me that he thought there was something on the track. I mean that the front end of the engine had passed the switch; that is the way it seems to me. The fireman said he thought there was something on the track, and I shut the engine off; we have a large lever that cuts the steam off the train, and I started to apply the brakes. I shut off the steam and I started to apply the brakes. When I started to apply the brakes the boy came across over to my side, and I saw the boy jumping along. I don’t know whether he was hallooing or not. There is quite a lot of noise on one of those engines, and I could not say whether hewvas hallooing or not. When I saw him come out of my side of the train I made a stop. The boy had already gotten out from in front of the engine and out of danger from the engine when I first saw him; he was in the clear. I do not know, and could not be positive, as to how far we ran after I saw the boy come out from under the engine, but I think that we ran until the second baggage car got to about even to where the boy was, behind the engine.”
He testified that on account of the curve it yvas impossible for him to see any one sitting on the frog or on the south rail beyond the frog from the engineer’s side of the train, but he thought he could have seen the boy on the frog if the track had been straight. He estimates the distance from where the engine stopped to the frog at from 125 to 150 feet. Quoting further from his testimony:
“When the fireman told me that he thought there was something on the track I think that the cab of the engine was past the switch stand. I do not remember whether the cab had passed the switch stand for any considerable distance or not, but, as I testified on the former trial, I think that the cab was considerably past the switch the best I can remember. The cab had passed the switch for several feet. The cab of the engine must have been about halfway between the frog and the switch stand, as well as I remember. I do not know that we were past the switch point. I can’t give you any definite figures on that; a man can’t tell just the particular moment that he sees things. I am doing the best I can. It is my judgment that the cab of the engine’ had gotten several feet past the switch stand when the fireman told me about that. When the cab of the engine got several feet past the switch stand the fireman told me he thought there was something on the track; he passed over from his side to mine, and said he thought there 'was something on 'the track. He did not tell me what it was that was on the track, and he did not say what he thought it was. He did not say that he thought there was something out there, but he did not think it, was a boy, and that it was not a woman, but did say' that he saw something out there, but he did not know what it was. What he said to me, that he had seen something on the track but did not "know what it was, did not convey the same meaning to me as if he had said that he saw a man on the track, and it did not cause me to stop in the same manner as I would have stopped if he had said there was a man on the track. Of course, when the fireman rushed over to me and told me that he thought there was something on the track I did not have the right as an engineer to speculate and say that I thought it was a piece of paper or a dog, but that did bring to my mind such notice as required immediate action. However, I do not think it should bring to my mind the same notice as if he had said there was a man on the track. When he told me that he thought there was something on the track I immediately shut my engine off. I acted on his information, just as though he had told me that there was a man. I shut off the steam from th§ engine. I did not see the boy come from under the engine, but I saw him look like he passed in front of the engine across on my side. I started to apply the air, but on a 13-car train it takes some little time to make a reduction, and I had just started to apply the air; I had not completed it when I saw the boy pass in front of the engine. At that time the boy had already been hurt. I started to apply the air before I saw the boy, just before he came across to my side of the train. I had already shut off the steam and was making the application of the air when I saw him. When I first saw the boy come from in front of the engine, it seemed to me that he was ahead of where the box is on the track that you show me in the picture, just about as far in front of the box as the box is in front of the frog; the box seems to be sitting about half the distance from the frog as the boy was when he came across the track and onto my side. If the box is 25 feet in front of where the frog is, I would say that the boy came across the track not as much as 25 feet in front of the box, but I could not say just how far. I do think it was the other side of the box. I am not sure about that, but as well as I remember it seems to me that he came across the track in front of the engine further ahead of the| frog than where the box is toward Temple.”
None of the witnesses testified to the speed of the train at the time. The engineer, however, testified’ that he sped up the train as much as possible in order to get by the switch in the least time, when he had to slow up for the brakeman. He testified, however, that he could not have stopped the train in 75 feet at the rate of speed it was going when the fireman gave him the warning. With regard to ability to stop the train, he testified that if everything is favorable you should stop a train quicker when it has a large number of cars than a small number .of cars; that it is harder to get a" heavy train started and easier to get it stopped than a light one; that it is harder to start and easier to stop on a curve, and, of course, easier to start and harder to stop on a down grade. The grade at this point was slightly down, but the extent of the grade is not testified to.
Defendant’s civil engineer gave the distance from the switch stand to the frog as
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87y¡¡ feet
Copass was clad in khaki trousers and a blue shirt. He testified that he was sitting on the frog, and this testimony is corroborated by one Payton, who was at the time a watchman for the S. P., and when the accident happened was on the north side of the track west of the roadway. He did not see Copass on the track, but afterwards examined the premises and found part of a shoe just by the frog, and found the ground somewhat torn up immediately, east of the frog, between the rails of the two roads. This witness further testified:
' “I did not see the accident, but I did hear of it that night. The first that I knew that a man was run over, I heard some hallooing, but I thought it was some one on the inside, and the first I knew of it was when the fireman came to me and asked me if X had seen anybody — if I had seen anybody loitering around there — and he asked me how they were dressed, and I told him I had seen three or four; and he asked me if I had seen a man dressed in khaki; and X told him ‘Tes’; and he wanted me to go down to identify the man, and I went down with him. I said, ‘My God! you didn’t run over a man as light as it was, and as slow as you were going; couldn’t you see him?’ and he said, ‘Yes; I saw him, but I thought it was a yellow dog.’ ”
The claim agent of defendant made a test with the engine in question shortly after the accident. This test was made at night under conditions in which it was sought to reproduce as near as possible the situation at the time of the accident. The claim agent and, another employé of defendant had two or three days after the accident gone out to the place where it occurred, and found blood and pieces of clothing on and near the south rail' of defendant’s line 23 feet east of the frog, from which they concluded that Copass was sitting at that point when he was hurt. They placed a boy who was somewhat smaller than Copass at this point, and had him sit down upon the rail with his head between his knees. This boy was dressed in dark clothgs. The engine was then moved east from just west of the roadway. Three persons were placed at different times in the fireman’s and engineer’s seats. These were W. H. Thaxton, C. E. Ibeonard, city engineer of Austin, and Harry Nolen, a civil engineer. Thaxton made two tests from the fireman’s seat. In the first test the front of the engine or running board cut off his view of the boy when he was 41 feet west of the switch stand. In the second test by him the boy was shut off from view 34 feet from the switch stand. Leonard and Nolen testified that the boy passed out of their view at 47 feet west of the switch stand. This difference is explained by the witnesses as resulting from a slightly different position of the eye of the observer. Thaxton, it appears, was somewhat taller than the other witnesses, and it was in evidence that the fireman was somewhat taller than Thaxton. All three of these witnesses, however, testified that at no time could either the frog or the boy be seen from the engineer’s side of the engine. Both Thaxton and Leonard testified that from the point where the engine started to the point where the view was cut off by the front of the engine the boy seated 23 feet east of the frog was in perfect view from the fireman’s box, his form was lit up by the engine headlight, and they could clearly distinguish at all times while he was in view that he was a human being; that the outlines of his figure were distinctly visible. Nolen’s testimony was to the same effect, except that he could not tell that thPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
<©=For other cases see same topic and KEY-hi UMBER in all Key-Numbered Digests and Indexes

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3909895. Public record. Not legal advice.