Frugia v. Texarkana & Ft. S. Ry. Co.

• Decision Date: 25 October 1904
• Citation: 82 S.W. 814
• Parties: FRUGIA et al. v. TEXARKANA & FT. S. RY. CO.
• Court: Texas Court of Appeals

82 S.W. 814

FRUGIA et al. v. TEXARKANA & FT. S. RY. CO.

Court of Civil Appeals of Texas.

October 25, 1904.

Appeal from District Court, Jefferson County; W. H. Pope, Judge.

Action by Jane Frugia and others against the Texarkana & Ft. Smith Railway Company. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

J. D. Wilkerson and Smith, Crawford & Sonfield, for appellants. Greers, Nall & Neblett, for appellee.

PLEASANTS, J.

This suit was brought by Mrs. Frugia, for herself and minor children, to recover damages for the death of Zeb Frugia, her husband and the father of said minors. The petition charges that the death of said Zeb Frugia was caused by the negligence of appellant in the operation of one of its trains in the city of Beaumont on the night of the 18th day of May, 1902; the specific acts of negligence relied on for recovery being fully set out in the petition. The defendant answered by general and special exceptions and general denial, and by special plea of contributory negligence. Upon the trial in the court below, after the evidence had been introduced, the trial judge, at the request of the defendant, instructed the jury to return a verdict in defendant's favor; and, upon the return of such verdict, judgment was rendered in accordance therewith.

The only question presented upon this appeal is whether the evidence is such as to justify the holding, as matter of law, that the deceased was guilty of contributory negligence. The evidence shows that deceased was killed while crossing appellant's track in the city of Beaumont on the evening of May 18, 1902, at about 15 minutes after 7 o'clock, by being struck by an engine drawing a passenger train on appellant's railroad. He was riding on horseback at the time he was killed, on his way from the eastern portion of Beaumont to his home, at Spindle Top, two or three miles southwest of said city. For some distance before reaching the point at which he started across the railroad, he had been riding along the side of the track, a few feet distant therefrom, going in a southeastern direction. Appellee's railroad track through this portion of the city of Beaumont runs northwest and southeast. The train which struck the deceased was coming into the city from the southeast. There is evidence to the effect that the point on appellee's track at which the deceased was killed had been constantly used by the public as a crossing ever since the railroad was constructed, and no objection is shown to have been made by appellee to such use. There was, however, no public road or street crossing at this place, and no road or street leading up to this place of crossing. There is testimony from which the jury might have found that the train which killed the deceased was running at a rapid rate of speed, without having its headlight burning, and without ringing the bell of the engine or giving any warning of its approach. The ordinances of the city of Beaumont prohibit the running of trains within the city limits at a greater rate of speed than six miles an hour, and require that the engine bell shall be kept constantly ringing during the time a train is moving through the city.

One witness testified that it was dark...