Davis v. St. Louis Southwestern Ry. Co. of Texas

• Decision Date: 13 January 1906
• Citation: 92 S.W. 831
• Parties: DAVIS v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
• Court: Texas Court of Appeals

92 S.W. 831

DAVIS v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.

Court of Civil Appeals of Texas.

January 13, 1906.

Rehearing Denied February 3, 1906.

Appeal from District Court, Titus County; P. A. Turner, Judge.

Action by Harry Davis, by W. E. Davis, as next friend, against the St. Louis Southwestern Railway Company of Texas. From a judgment for defendant, plaintiff appeals. Reversed.

Pounders & Burford and Johnson & Edwards, for appellant. Glass, Estes & King and E. B. Perkins, for appellee.

RAINEY, C. J.

This suit was brought by W. E. Davis, as next friend, for the use and benefit of Harry Davis, to recover damages from the appellee for personal injuries sustained by Harry Davis through the alleged negligence of appellee's employés. Defendant answered by general denial, and specially that if plaintiff was hurt he ought not to recover, because his own negligence caused and contributed to cause his injuries. "That he negligently and recklessly, and in known violation of defendant's rules, got on one of defendant's cars while the same was in motion, and negligently attempted to change his position on said car, and negligently got in between the ends of two of the cars in its train while the same was in motion, and either negligently got off or fell off, without fault or negligence of the defendant." A verdict was directed for the defendant, which direction was complied with and judgment rendered accordingly. This action of the court is complained of, and whether or not the evidence was such as to warrant the court's action is the question for our decision.

There is evidence to the effect that appellee's yards and switches in Mt. Pleasant extended for a half mile or more north and south, and the depot and superintendent's office were situated beside these tracks. The residence portion of the town is about equally divided by these tracks, which tracks cross two or three streets; the principal one being south of and quite near the depot, and said street being much frequented and traveled by people living east of the railroad. Children living to the east commonly used this crossing in going to school. It was near this crossing that Harry Davis got upon the moving car by which he was injured. There was testimony by parties living near the tracks that almost every day for several years they could see quite a crowd of small boys, from 9 to 15 years, riding on the side of freight and passenger trains. They would hang on whereever they could get hold of the cars, on the steps of passenger trains, and on the back of the coal boxes of engines; they would hold with their hands to handholds, and let their feet rest on the trucks. That the railroad employés never interfered with the boys. There was testimony to the effect that the employés, whenever they saw the boys, would drive them away, and at times when the employés' backs were turned the boys would return and jump upon the cars. That the company at various times had instituted prosecutions against some of the boys for jumping upon and thus riding upon the trains. There was testimony which showed that the company had used means to prevent the boys from persisting in riding upon the freight cars, and it was shown that the porter of the passenger train had consented for the boys to get on and ride the passenger coaches around the Y. There was evidence that Harry Davis was between eight and nine years old at the time of the accident, and was a boy of fair intelligence for one of his years. He lived with his father east of the railroad, and the crossing above referred to was commonly used by Harry and other children in going to and from town and school. He and several other boys about his age, on the afternoon in question, were beside the company's track, near the street crossing and about...