Dobbins v. Missouri, K. & T. Ry. Co. of Texas

• Decision Date: 24 May 1897
• Citation: 41 S.W. 62
• Court: Texas Supreme Court
• Parties: DOBBINS v. MISSOURI, K. & T. RY. CO. OF TEXAS.

Page 62

41 S.W. 62

DOBBINS v. MISSOURI, K. & T. RY. CO. OF TEXAS.

Supreme Court of Texas.

May 24, 1897.

Error to court of civil appeals of Fifth supreme judicial district.

Action by M. Dobbins against the Missouri, Kansas & Texas Railway Company of Texas for loss of services. Judgment for plaintiff was reversed by the court of civil appeals (40 S. W. 861), and plaintiff brings error. Affirmed.

Parks & Carden, for plaintiff in error. Alexander, Clark & Hall, for defendant in error.

DENMAN, J.

Prior to the construction of the roadbed of defendant in error there was, several hundred yards north of the point where Letot station is now situated, a depression from the east to the west which carried off storm water from the surrounding lands. Said roadbed having been constructed north and south across this depression without the necessary culverts and sluices to carry off such water, it was, in its course westward, diverted by the roadbed, and compelled to run south in the excavation made on the right of way on the east side of the track in building the road. In its course it passed along by the section house, thence on by the plank platform provided by the company for the reception and discharge of passengers and freight at said station, cutting a ditch several feet deep, and forming within two or three feet of the platform a pool of water several feet deep. From this platform a path led to a store and post office across the ditch, which was crossed, within ten feet of said pool of water, on some plank placed there by the company, such pathway being generally used by persons going to and from the platform. There were several houses near the pool, one of which was the company's section house, about 200 feet therefrom, in which plaintiff, Dobbins, lived. The ditch above described ran between this section house and the track, and there was another running on the other side of the house, the two ditches uniting before reaching the pool. Plaintiff's child, less than three years old, escaped alone from the section house under circumstances warranting a finding by the jury that neither he nor his wife was guilty of negligence, and a short time thereafter was found drowned in the pool. From a judgment in favor of plaintiff for damages resulting from the death of the child the company appealed to the court of civil appeals, where the judgment of the trial court was reversed, and the cause remanded, on the ground that there was "no phase of the evidence which justified a verdict for the plaintiff, and the court should have so instructed the jury." Plaintiff has brought the cause to this court upon writ of error complaining of said holding of the court of civil appeals, and alleging, in order to give jurisdiction to this court, "that the judgment of the court of civil appeals reversing the judgment of the district court herein practically settles the case, and petitioner's attorneys here and now state that the decision of the court of civil appeals practically settles the case, and petitioner further says that no proof other than that made on the trial of this cause in the district court can be produced upon another trial, and that no different evidence nor better evidence can be produced on another trial of this case than was produced on the trial in the district court." In addition to the facts above stated, there was evidence from which the jury could have found that the pool at its nearest point was not over two feet from the path; that there was thickly settled neighborhood around the station; that the pool was attractive and dangerous to little children of the age of deceased; that such children, including deceased, had before often played around same; that no precautions were taken by the company to prevent such children from getting into it; that the company was some time before the accident informed of such facts, and requested by plaintiff to remove the pool, which was not done. There is no evidence in the record from which the jury could have concluded that the child was or had been traveling or attempting to travel said path at or just before it got into the pool. There is no evidence of any passway from the section house, nor is there any evidence tending to show by what route the child reached the pool. There is no evidence that said path was used or intended to be used by any one other than those going to and from the platform upon business in some way connected with the company.

The common law imposes no duty upon the owner to use care to keep his property in such condition that persons going thereon without his invitation may not be injured. In considering the question as to whether a duty exists, there is no distinction between a case where an infant is injured and one where the injury is to an adult, though where the duty is imposed the law may exact more vigilance in its discharge as to the former. If there be no duty, the question of negligence is not reached, for negligence can in law only be predicated upon a failure to use the degree of care required of one by law in the discharge of a duty imposed thereby. Since the common law imposes no duty on the railroad to use care to keep its right of way in such condition that persons going thereon without its invitation may not be injured, and since there is no evidence in the record from which the jury could have found such an invitation to the child, it was no more liable in law for its death than would have been a neighbor had it wandered into his uninclosed lands and been drowned in his tank or creek, or been killed by falling down his precipice. Since the principles above stated have been so fully and ably discussed heretofore by many learned jurists, we deem it unnecessary to undertake to elaborate them, but will content ourselves by referring to the opinion of the court of civil appeals and the following cases decided upon similar facts: Hargreaves v. Deacon, 25 Mich. 1; Railway Co. v. Edwards (Tex. Sup.) 36 S. W. 430; Moran v. Car Co. (Mo. Sup.) Id. 659; Charlebois v. Railroad Co., 91 Mich. 59, 51 N. W. 812; Clark v. Manchester, 62 N. H. 577; Greene v. Linton (City Ct. Brook.) 27 N. Y. Supp. 891; Murphy v. City of Brooklyn, 118 N. Y. 575, 23 N. E. 887; Witte v. Stifel, 126 Mo. 295, 28 S. W. 891; Galligan v. Manufacturing Co. (Mass.) 10 N. E. 171; O'Connor v. Railroad Co., 44 La. Ann. 339, 10 South. 678; Richards v. Connell (Neb.) 63 N. W. 915; Benson v. Traction Co. (Md.) 26 Atl. 973; Sterger v. Van Sicklen, 132 N. Y. 499, 30 N. E. 987; Frost v. Railroad (N. H.) 9 Atl. 790; Klix v. Nieman (Wis.) 32 N. W. 223; Oil Co. v. Morton, 70 Tex. 400, 7 S. W. 756; Clark v. City of Richmond, 83 Va. 355, 5 S. E. 369; Ratte v. Dawson (Minn.) 52 N. W. 965; City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N. E. 155.

We are aware that there are cases asserting a contrary doctrine, but do not think they are based upon sound principle. They rest mainly upon Railroad Co. v....