89 S.W. 983 (Tex.Civ.App. 1905), Gulf, C. & S.F. Ry. Co. v. Matthews

Citation:89 S.W. 983
Opinion Judge:TALBOT, J.
Party Name:GULF, C. & S.F. RY. CO. v. MATTHEWS et al.
Attorney:J.W. Terry, Smith & Beaty, and Lee & Goree, for appellant. Wolfe, Hare & Maxey, for appellees. A.R. Woodward, for defendant, testified: I am a locomotive engineer. I was a fireman before my promotion in 1901. I remember the circumstances of a man being run over alongside of the old cemetery, in t...
Case Date:October 14, 1905
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas
 
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Page 983

89 S.W. 983 (Tex.Civ.App. 1905)

GULF, C. & S.F. RY. CO.

v.

MATTHEWS et al.

Court of Civil Appeals of Texas

October 14, 1905

Appeal from District Court, Grayson County; B.L. Jones, Judge.

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

See 74 S.W. 803.

Rehearing refused November 4, 1905.

Page 984

J.W. Terry, Smith & Beaty, and Lee & Goree, for appellant.

Wolfe, Hare & Maxey, for appellees.

TALBOT, J.

The dead body of J.L. Matthews was found on appellant's railroad track within the corporate limits of the city of Ft. Worth, a little after 6 o'clock in the morning of May 8, 1899, and this suit was instituted by appellee, Mrs. Maggie Matthews, as his surviving wife, on behalf of herself and her minor children, to recover damages on account of his death, which it is alleged was occasioned by the negligence of appellant. It is alleged, in substance, that J.L. Matthews, on the 8th day of May, 1899, was walking along on appellant's railroad track within the corporate limits of the city of Ft. Worth, where said track was commonly and habitually used as a pathway by pedestrians with the knowledge, consent, and acquiescence of appellant; that, while so walking along and upon said track, the said J.L. Matthews was, by the negligence of appellant's servants, operating one of its freight trains, in running such train within the city limits at a greater rate of speed than allowed by an ordinance of said city and in negligently failing to ring the bell of the engine and to keep a lookout for persons who might be expected to be on its track, knocked down, run over, and killed by said train. Appellant pleaded the general issue, contributory negligence, and specially that appellant had posted along its road in the city of Ft. Worth warning notices to the public to the effect that all persons not having business with the company were forbidden to sit, stand, or walk upon its railroad tracks, and were prohibited from walking on or crossing the tracks of the company, except at legally established crossings; that the company did not consent to such use of its track, and that no officer or agent of the company had authority, by acquiescence or otherwise, to consent to such use of the tracks, etc.; that J.L. Matthews was not walking along its track when struck by its train, but that he was lying down upon the same; that he had either been foully dealt with and stunned or murdered and placed upon the track, or else he was in a state of intoxication and had walked upon appellant's track and lain down upon the same, or for some other reason was lying asleep or in a state of insensibility on the track, and that its servants in charge of said train did not discover him in time to prevent the injury; that by an ordinance of the city of Ft. Worth it is provided in substance that it shall be unlawful for any person to trespass upon the property of any corporation without its consent, and any person so doing shall be deemed guilty of a misdemeanor, and upon conviction be fined any sum not exceeding $10. A jury trial resulted in a verdict and judgment against appellant in the sum of $15,000, from which this appeal is prosecuted.

The deceased, Matthews, owned a grading outfit, consisting of teams and tools. This outfit had been carried to Cleburne, Tex., and on the afternoon of May 7, 1899, the day before he was killed, Matthews left Cleburne for Ft. Worth, in company with T.W. Turner, where he was expecting to get work. Before leaving Cleburne Matthews instructed one of his employés to carry the grading outfit across the country to Ft. Worth, and meet him at a certain watering trough on

Page 985

Main street, about 3 o'clock p.m. on May 8th. About 10 o'clock p.m. on May 7th Matthews and Turner separated at a hotel or lodging house on Main street in Ft. Worth, agreeing to meet next morning at 7 o'clock on Front street and then go together to look for a camping place for the teams and grading outfit. Matthews told the clerk at this lodging house that he wanted to secure a bed, but did not care to go to sleep right then; that he was going away, but would be back in about one hour to occupy the bed. He was informed that he could get the bed, and about 10 o'clock p.m. he left in a state of intoxication, but did not return to occupy the bed. After Matthews left the lodging house on Main street, and about 11 o'clock that night, he went to the Tremont Hotel, in Ft. Worth, and applied to L.C. Andrews, who was night clerk, for a bed. He told Andrews his name was Matthews. The bed was secured and Matthews occupied it that night. In conversation with Andrews, before going to bed, Matthews told him that he had some teams on the road to Ft. Worth and that he wanted to find some suitable grounds for camping. Andrews told Matthews that he had seen people camped on the north side of the river, back of the jail, and also out along the Santa Fé track beyond the old cemetery. Before going to bed Matthews instructed Andrews to wake him up about 5 o'clock or a little after 5 o'clock the next morning, as he wanted to get out and get a camp for his teams. Andrews awakened Matthews about 5:30 o'clock next morning, and in a few minutes afterwards Matthews went down into the hotel office and remained but a very short time. During this time, however, Matthews again asked Andrews about the camping grounds and the directions to them, and after receiving such directions he left, saying he was going to look for a camping place. This was about 10 or 15 minutes before 6 o'clock on the morning Matthews was killed. Andrews never saw Matthews but twice--first at night, when he rented him the bed, and again the next morning, after he got up and came into the hotel office. When Matthews applied to Andrews for a bed he was drinking, but by himself. When he came down next morning he was sober. The hotel at which Matthews spent the night kept a register, but Andrews did not enter Matthews' name upon it.

Andrews testified that he took Matthews upstairs and then asked him his name, as he wanted to register him, but that he neglected to do so. He described this man Matthews as being 5 feet 6 or 7 inches high, of light complexion, weight about 135 or 140 pounds, and wearing a brown or dark suit of clothes and a black slouch hat; that he carried a small bundle under his arm, but did not have any grip. He further testified that Matthews carried the bundle with him when he left the hotel the next morning, Andrews heard, the afternoon of the day that Matthews was at the Tremont Hotel, or the next afternoon, that Matthews had been found dead on the Santa Fé Railroad near the old cemetery. He said nothing about Matthews having slept at the Tremont Hotel the night before his death, except to an old gentleman by the name of Wilkerson, until he disclosed the facts to one Williams, about four or five months prior to the taking of his depositions in this case, August 25, 1903. Andrews testified: "I have kept silent about this matter, during these four years, because I did not think it was any business of mine--because I never thought that what I knew about it was of any importance or value on either side. I knew nothing whatever about how the man met his death. I did not want to be kept in the courts and dragged away from my work on account of the matter, believing that what I knew was of no importance."

W.C. Prince was sexton of the old cemetery, near where the dead body of Matthews was found. On the morning Matthews was killed Prince saw one of appellant's trains pass going north. About 5 or 10 minutes before this train passed he (Prince) saw two men walking on the railroad track, both going north. He was about 35 yards distance from them, sitting in his kitchen eating breakfast, and did not know who they were. They passed along on the track about 60 or 70 yards apart. After this train passed Prince started to the cemetery, and saw several persons gathered at the scene of the accident, and went there and saw the dead body.

Clyde Baptist was a section hand in the employ of appellant, and lived at its section house. This section house was about 50 feet west of appellant's track, at Peach street, which is about 1/4 of a mile south of where the dead body of Matthews was found. On the morning the body was found he saw a man walking up appellant's railroad track north. He did not know the man. The man he saw was about 5 feet 6 inches high, medium built, and wore a dark suit of clothes and slouch hat, probably of a brown color...

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