Gulf, C. & S. F. Ry. Co. v. Matthews

• Decision Date: 25 March 1903
• Citation: 73 S.W. 413
• Parties: GULF, C. & S. F. RY. CO. v. MATTHEWS et al.
• Court: Texas Court of Appeals

73 S.W. 413

GULF, C. & S. F. RY. CO. v. MATTHEWS et al.

Court of Civil Appeals of Texas.

March 25, 1903.

Error from District Court, Grayson County; Rice Maxey, Judge.

Action by Maggie Matthews and others against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant brings error. Reversed.

This suit was brought by Maggie Matthews, as the surviving wife of J. L. Matthews, deceased, for herself and as next friend of Katie May Matthews and Beulah Marie Matthews, his minor children, against the plaintiff in error, to recover damages for its alleged negligent killing of the deceased. The substance of plaintiffs' petition is that on the 8th day of May, 1899, J. L. Matthews, while walking along on plaintiff in error's railroad track, where it was commonly used by the public with the knowledge, consent, and acquiescence of the company, within the corporate limits of the city of Ft. Worth, was, by the negligence of the railroad company's servants operating one of its freight trains, in running such train within the city limits at a rate of speed greatly in excess of that prescribed by an ordinance of said city in negligently failing to keep a lookout for persons on its track, and in negligently failing to ring the bell of the engine, knocked down, run over, and killed by said train, to plaintiffs' damage in the sum of $50,000. The defendant railway company answered by a general denial and plea of contributory negligence, as well as by several other special pleas, which, in view of the disposition we shall make of the case, are not necessary to state here. The case was tried before a jury, and the trial resulted in a judgment for $14,000 against the company, from which it has appealed.

J. W. Terry and Cowan, Burney & Lee, for plaintiff in error. Wolfe, Hare & Semple, for defendants in error.

NEILL, J. (after stating the facts).

The plaintiff in error presents, in its brief of 170 pages, 61 assignments of error, each of which is urged as a reason for the reversal of the judgment. These assignments are answered by defendants in error by a brief of 87 pages, in which it is contended that none of them furnish any grounds for disturbing the judgment. In response, plaintiff in error has filed in this court a supplemental brief of 30 pages. While we have read with interest all these briefs, and considered carefully each assignment of error presented, the conclusion we have reached in determining this appeal renders it necessary for us to consider only those assignments which relate to the question of deceased's contributory negligence. It is to this question that our statement and discussion of the evidence will be mainly directed.

J. L. Matthews owned teams and a grading outfit, with which, up to a few days before May 7, 1899, he had been working for the Santa Fé Railroad near Heidenheimer, which teams and outfit had been carried from there to Cleburne, Tex. On that day Matthews left Cleburne on the afternoon train for Ft. Worth; telling his employé before leaving that he was going there to get work, which he expected to procure either from the Texas & Pacific Railway Company, or at a gravel pit in the last-named city; at the same time instructing his employé to carry his teams and grading outfit overland to Ft. Worth; promising to meet him there on the next day at 3 p. m. at a watering trough on lower Main street, and that he would in the meantime find and provide in or near Ft. Worth a camping place for his teams and outfit. Matthews arrived in Ft. Worth that evening, accompanied by a companion, T. W. Turner, who left him at a hotel on Main street about 10 o'clock that night, with the understanding that they should meet at 7 o'clock next morning on Front street, and would together look out for a camping place. Before Turner left him, according to his testimony, Matthews had taken two drinks of whisky, and was slightly under the influence of the beverage. Turner also heard Matthews speak to the hotel clerk about procuring a bed. The clerk at the hotel testified that Matthews told him he wanted a bed, but did not care to go to sleep right then; that he was going away, but would be back in about an hour and occupy the room. The room was shown him by the clerk, and Matthews then left; it being somewhere between 10 and 1 o'clock. He was never afterwards seen alive by any one who recognized him. He did not return to the hotel, and it is not shown from the evidence where he went from there, or where he spent the remainder of the night. The clerk testified that when he came to the house to get a bed he was intoxicated to such an extent that he would stagger as he walked, and that it was easy to see that he was drinking a good deal.

The length of plaintiff in error's road lying within the corporate limits of Ft. Worth is about three miles, its general direction being north and south. Old Cemetery is situated within the city limits, on the west side of the road, about a mile and a half north of the depot, and from the center of the city. From the northeast corner of the cemetery, where the railroad crosses the north boundary line of the city, is 865 feet. Bridge 210 of the road is 435 feet north from Peach street. Bridge 211 is 475 feet north of bridge 210, and bridge 211 is 270 feet from 210. A curve in the road begins near bridge 210, and ends some distance north of the cemetery, near bridge 212. From the north side of Peach street, extending north to Trinity river, probably more than a mile, the road is built upon an embankment, which between bridges 210 and 211 is 15 feet high, and is down grade. The stockyards are about three miles north of Ft. Worth. North of and near Old Cemetery were grounds that had been used for campers for a long time. An ordinance of the city of Ft. Worth makes it a penal offense to run a train anywhere within the city limits at a greater rate of speed than six miles per hour.

On the 8th day of May, 1899, at 6 o'clock a. m., a freight train, loaded with cattle, of plaintiff in error, left its depot at Ft. Worth with orders to meet another train at the stockyards at 6:15 that morning, and en route, while running at a speed of 25 or 30 miles an hour, ran over an object which the engineer and fireman say was lying near the north end of Old Cemetery. The train never stopped or slackened its speed until it reached the stockyards. Then, upon examining the wheels and appliances of the cars, blood, particles of flesh, and parts of viscera, which were thought to be of a human being, were found. Early that morning a witness. John Woods, who lives with his mother near the railroad, north of the cemetery, in going down to the business part of the city, while walking down the railway track, met a freight train, loaded with cattle, going north, and stepped aside to let it pass. He then resumed his journey, and, after proceeding about 100 yards from the point where the train passed him, came upon the body of a dead man, lying on the track between bridges 210 and 211, which it is admitted was that of J. L. Matthews. It was badly mangled; the top of the skull being mashed off; the brain exposed; legs cut and broken in several places; the abdomen torn open, and viscera exposed and lacerated; both feet severed and hanging merely by the skin; and nearly all of the clothing torn off; and the body was warm, bleeding profusely, and the flesh quivering. It is evident that this body was the object seen by the engineer and fireman, and run over by plaintiff in error's freight train that left its depot at 6 o'clock that morning.

For the purpose of eliminating the case of every question except that of contributory negligence on the part of deceased, it will be conceded that the railroad track along where Matthews was run over was constantly used, with the knowledge and acquiescence of the company, as a pathway by pedestrians; that the company was negligent in running its train in the city limits at a speed greatly in excess of six miles an hour; that its servants negligently failed to ring the bell of the engine; and that such negligence of the company contributed to Matthews' death. This leaves us to consider and determine from the evidence the bare question as to whether deceased was guilty of contributory negligence. This is primarily a question of fact for the jury, and, except in cases where the plaintiff's own evidence raises a presumption of such negligence, the burden of proof is on the defendant; and a court will not disturb the verdict of a jury unless from all the evidence it so clearly and palpably appears that he was guilty of contributory negligence that men of ordinary minds could form no other conclusion.

If Matthews was lying down on plaintiff in error's railroad track—whether drunk or sober, asleep or awake—at the time he was struck and run over, it cannot be denied that he was guilty of negligence proximately contributing to his death. It is not alleged or contended that he was discovered in such an attitude by the operators of the engine in time for them to prevent the train from running over him; nor that, if the speed of the train had not been greater than six miles an hour, it would have been possible, after seeing the object on the track, to stop the engine before reaching the place where it was lying.

The defendants in error base their case solely upon the theory that deceased was walking along the track in front of the engine when he was struck by the train, and that he was not negligent in being there. Therefore, if he was lying down on the track, or, if not, his walking along it in front of the train was negligence, they are not entitled to recover. This raises the questions: (1) Does the evidence show that deceased was lying on the track when struck? (2) If not, was he walking in front of the engine, and, if he were, was it negligence?

The undisputed evidence shows that a fog so dense enveloped the city of Ft. Worth at the time of the accident that...