Ward v. Bonner

• Decision Date: 10 March 1891
• Citation: 15 S.W. 805
• Court: Texas Supreme Court
• Parties: WARD v. BONNER <I>et al.</I>

15 S.W. 805

WARD v. BONNER et al.

Supreme Court of Texas.

March 10, 1891.

Appeal from district court, Anderson county.

J. R. Burnett, for appellant. G. H. Gould, for appellees.

HENRY, J.

Appellant brought this suit to recover damages for personal injuries received by him while acting as an engineer in a wreck of a train on defendants' railroad. The wreck occurred at night, and was caused by the engine coming in contact with two cows lying upon the track, at a place where the railway had been fenced by the defendants on both sides, between two private crossings, without placing cattle-guards at either entrance. The negligence charged by plaintiff's petition was "in failing to provide proper and sufficient cattle-guards, of which omission plaintiff had no knowledge or warning, and whereby the danger of running trains through the inclosure was increased, cattle being attracted into it," etc.; and that "the decayed and rotten condition of the ties caused the engine to turn and to be thrown down the embankment, when if the ties had been reasonably sound they would have supported the engine, which could have been stopped on the ties." The court charged the jury to find a verdict for the defendants. We consider it unnecessary to refer to the evidence further than to say that it substantially corresponded with the case made by the plaintiff's petition.

It is not claimed that the ties were not strong enough to support the engine and cars as long as they remained on the rails. The fact that they were not strong enough to support an engine running at the rate of 25 or 30 miles an hour when derailed was not evidence of negligence, as the court might very well inform the jury. The same thing may be said about the absence of cattle-guards. The provisions of the Revised Statutes upon that subject are copied into appellant's brief, and read as follows: "Art. 4240. Each and every railroad company whose railway passes through a field or inclosure is hereby required to place a good and sufficient cattle-guard or stop at the points of entering such field or inclosure, and keep them in good repair. Art. 4241. In case an inclosure or field through which a railway passes shall be enlarged or extended, or the owner of the land over which a railway runs shall clear and open a field so as to embrace the track of a railway, such railroad company is hereby required to place good and sufficient cattle-guards or stops at the margins of such extended inclosures or fields, or...