Dillingham v. Fields

• Decision Date: 07 November 1894
• Citation: 29 S.W. 214
• Parties: DILLINGHAM v. FIELDS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

29 S.W. 214

DILLINGHAM v. FIELDS.¹

Court of Civil Appeals of Texas.

November 7, 1894.

Appeal from district court, Limestone county; Rufus Hardy, Judge.

Action by John Fields against Charles Dillingham, receiver. Judgment for plaintiff. Defendant appeals. Affirmed.

O. T. Holt, for appellant. Farrar, Kincaid & Williams, for appellee.

LIGHTFOOT, C. J.

This suit was brought by appellee against appellant, as receiver of the Houston & Texas Central Railway Company, to recover damages for injuries to himself and his mule, on October 29, 1892, received while crossing the line of said railway in the town of Groesbeck. The testimony, and the verdict and judgment thereon, justify the following conclusions: The appellant, at the time of the injury, was receiver of the Houston & Texas Central Railway Company, which passes through the town of Groesbeck, and crosses Navasota street. At the point where said railroad crosses said street, the same is intersected by a public road, known as the "Personville Road." Said street is 80 feet wide, and is also a part of the Groesbeck and Pottersville road, which occupies a part of the same ground as said street. The following is a correct diagram of Navasota street and the Groesbeck and Pottersville road, which is a part of said street, and also the Groesbeck and Personville road, and the crossing made by the railway:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The appellant, in making the crossing of said street and road, made a reasonably good crossing upon a part of the same, but failed to restore said street to its former state, or to such state as to not unnecessarily impair its usefulness, in this: That upon a portion of said street no effort had been made to provide a safe and proper crossing, and on such portion there were no planks or timbers put in to provide a safe crossing. The space around the rails had been partially filled with gravel, and a spike was negligently allowed to project above the crossties, so as to become dangerous to travelers crossing said railway track. That on said October 29, 1892, appellee attempted to cross said track upon said Navasota street, intending to pass from said street to the Personville road, which intersected said street just beyond said crossing; and the foot of his mule was caught by said spike which appellant had negligently allowed to project above the cross ties, and appellee was thrown from said mule, and he and his mule sustained great injuries, whereby appellee was damaged to the full amount of $3,000, as found by the verdict of the jury and judgment below. Appellee was not guilty of contributory negligence in attempting to cross said track at said place in the manner he did.

In the 14 assignments of error presented by appellant, the same points are repeated in different form, and we will consider the following:

1. One of the leading points relied upon by appellant is that having made a good crossing over the street, about 20 feet wide, which was properly guarded and planked, so as to be safe for travel, and wide enough for all practical purposes, appellant had performed his duty, and that appellee, for his own convenience, in attempting to cross on a portion of said street which not so prepared, was guilty of contributory negligence, and cannot recover. The statute upon the subject of crossing a street by a railroad is substantially as follows (Rev. St. art. 4170): "Such corporation shall have a right to construct across, along or upon any stream of water, water course, street, highway, plankroad, turnpike or canal which the route of said railway shall intersect or touch; but such corporation shall restore the stream, watercourse, street, highway, plank-road, turnpike or canal thus intersected or touched to its former state, or to such state as not to unnecessarily impair its usefulness to the public, and shall keep such crossing in repair." In the case of Little Miami R. Co. v. Commissioners of Greene Co., reported in 31 Ohio, 345, in which the company had a charter conferring powers almost the same as in the language above stated, the court says: "The 12th section of the charter conferred upon the company no power to lay its track across or along any part of the highway except upon the condition, or as coupled with the duty, of restoring it to its former state of usefulness to the public. ...