Ft. Worth & D. C. Ry. Co. v. Poteet

• Decision Date: 19 December 1908
• Citation: Ft. Worth & D. C. Ry. Co. v. Poteet, 115 S.W. 883, 53 Tex. Civ. App. 44 (Tex. App. 1908)
• Parties: FT. WORTH & D. C. RY. CO. v. POTEET.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

115 S.W. 883

FT. WORTH & D. C. RY. CO. v.POTEET.^†

Court of Civil Appeals of Texas.

December 19, 1908.

Rehearing Denied January 16, 1909.

Appeal from District Court, Wise County; J. W. Patterson, Judge.

Action by Marvin Poteet, by his father and next friend, T. M. Poteet, against the Ft. Worth & Denver City Railway Company.Judgment for plaintiff, and defendant appeals.Affirmed.

Spoonts, Thompson & Barwise, T. J. McMurray, and J. M. Chambers, for appellant.R. E. Carswell and Trabue Carswell, for appellee.

CONNER, C. J.

On or about the 27th day of April, 1907, Marvin Poteet, seven years of age and alleged to be without experience and discretion or mature judgment, left the home of his parents, together with his mother and a younger brother, and traveled in an easterly direction along a much used and traveled public road until it reached a public crossing over appellant's line of railway, which extended north and south.Just before the crossing was reached, the mother directed the little boys to get out and await the coming of their father, who was engaged in plowing cotton immediately west of appellant's right of way, the rows extending north and south, while she, the mother, proceeded along a public road extending north along the west side of appellant's railway to the town of Rhome, about two miles away.After the departure of the mother, the little boys entered upon the crossing, and Marvin Poteet turned south along the railway track, crossed over the cattle guard, and while walking the rails some 20 feet south of the crossing was knocked off by the engine of a south-bound passenger train and injured as alleged.This suit was instituted by T. M. Poteet, as the father and next friend, to recover for the injuries so inflicted.It was alleged that the train in approaching said crossing was running downgrade at a high and dangerous rate of speed, making no noise, that the employés operating the said train were guilty of negligence in running the train at such high speed at that place, and in failing to sound a whistle at the distance of 80 rods from said crossing, or to ring a bell on said engine as it approached and passed the crossing.It was further alleged that Marvin Poteet was walking with his back to the train and did not hear its approach, and that the operatives of the train could by the use of ordinary care have seen him upon the track, and that they were guilty of negligence in having failed to keep a lookout and to see and warn him.The appellant answered by a general denial, and specially that, "if plaintiff was ever injured by being struck by any of defendant's engines, he was so struck by reason of his own negligence, and that the plaintiff was guilty of negligence that caused and contributed to his own injury."The trial resulted in a verdict and judgment for appellee in the sum of $2,200.

Error is first assigned to the following paragraph of the court's charge: "If you find and believe that the plaintiff was on the track of the defendant a few yards from a public crossing, and if you believe that while he was so on the track one of defendant's engines drawing one of its trains approached and struck and hurt the plaintiff, and if you believe that the employés of the defendant in charge of said engine negligently failed to keep a proper lookout to discover persons that might be on the track on or near the said crossing, and if you believe that by reason of the failure to keep such lookout that the plaintiff was struck and hurt without fault or negligence on the part of the plaintiff that caused or contributed to his hurt, and if such failure to keep a lookout was negligence on the part of those in charge of said engine, and if the plaintiff was thereby damaged, the plaintiff would be entitled to recover the damages sustained as hereinafter charged upon and the measure of damages.Or if you find the plaintiff was on the track of the defendant's road at said point, and if you believe that the agents and employés of the defendant in charge of its train failed to sound the whistle at the distance of 80 rods from such public crossing, and to ring the bell and keep the bell ringing till the train passed said public crossing, and if you believe the plaintiff was on the track of the defendant a few yards from such public crossing and if you believe that the failure to so sound the whistle and ring the bell was negligence on the part of the agents and employés in charge of said train toward the plaintiff, and if you believe that by reason of such negligence of such agents and employés that the plaintiff was struck, hurt, and damaged without fault or negligence on the part of the plaintiff that caused or proximately contributed to his hurt, you should find for the plaintiff."It is insisted that: "Plaintiff having been injured at a point on the track which was neither a public crossing nor a place used by the public, defendant was not required by law to keep a lookout for trespassers, and it was error to instruct the jury upon the issue as to whether such failure was negligence, and authorize a verdict for plaintiff in case such failure was found to be negligence and caused the injury."

It is to be observed that the charge did not admit of a recovery in behalf of appellee on the ground of negligence in the operatives of the train to keep a proper lookout to discover persons that might be on the track on or near the crossing, unless the jury further found that Marvin Poteet was struck and hurt without fault or negligence on his part, so that the question is whether employés operating a train are required to exercise ordinary care in keeping a lookout to discover persons not affected with contributory negligence, trespassers though they may be, upon the track in order to avoid injuring them.The authorities on the subject are not harmonious, but as early as March, 1881, our Supreme Court, in the case of H. & T. C. Ry. Co. v. Sympkins, 54 Tex. 615, 38 Am. Rep. 632, said, referring to the conflicting decisions: "We prefer that line of decisions holding railroads bound to exercise their dangerous business with due care to avoid injury to others as correct in principle and sound in policy and as protecting even a trespasser who is not guilty of contributory negligence."The principle so stated has been frequently since adhered to by the decisions in this state.A clear application of it is to be found in the case of M., K. & T. Ry. Co. of Texas v. Hammer, 34 Tex. Civ. App. 354, 78 S. W. 708, in which a writ of error was denied by our Supreme Court.It was there expressly held by the Court of Civil Appeals for the Fifth District that, in an action for injuries to a minor child while trespassing on a railroad track, an instruction requiring the railroad employés to use ordinary care to discover infants who may be on or near the track in front of the train by keeping a reasonable lookout for that purpose was proper.In the case of St. Louis Southwestern Ry. Co. of Texas v. Bolton, 36 Tex. Civ. App. 87, 81 S. W. 123, in a suit brought for injuries to a child 11 years of age walking on a railroad trestle, the Court of Civil Appeals for the First District, in discussing the railway's contention that the child was a trespasser, and hence that no duty to keep a lookout was devolved upon the operatives of the train, say: "But conceding, for the sake of argument, that the injured child was a trespasser, still the appellant owed her the duty to use reasonable care in the operation of its train and to discover her presence on its track.If appellant operated its train in a negligent manner, or negligently failed to keep a proper lookout to discover persons on its track, it would be liable to any person injured by such negligence who was not guilty of contributory negligence."Many other cases might be cited to the same general effect.Among them may be noted: Railway Co. v....