Galveston, H. & S. A. Ry. Co. v. Leonard

• Decision Date: 12 December 1894
• Citation: 29 S.W. 955
• Court: Texas Court of Appeals
• Parties: GALVESTON, H. & S. A. RY. CO. v. LEONARD.

29 S.W. 955

GALVESTON, H. & S. A. RY. CO. v. LEONARD.

Court of Civil Appeals of Texas.

December 12, 1894.

Appeal from district court, Bexar county; W. W. King, Judge.

Action by James Leonard against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Upson & Bergstrom, for appellant.

FLY, J.

This is a companion case to that of Railway Co. v. Norris (this day decided by this court) 29 S. W. 950. Appellee sued for the thousand dollars damages alleged to have accrued by reason of the death of his son Frank Leonard, who was killed in a wreck on appellant's road at or near the Sabinal river, in Uvalde county, Tex. The material allegations of the petition are as follows: "Plaintiff shows: That the proximate cause of the death of his said son was the defective and unsafe construction and maintenance of the defendant company's roadbed, track, cattle guards, and road crossing at or near the place where said wreck occurred, and his said son was killed as aforesaid, in this: That just west of the road crossing and cattle guards, and at or near the place where said cars left the track, there is a deep cut made through a hill and a steep grade, having a rapid descent for a distance of half a mile along said track, and extending down to the road crossing and cattle guards, as aforesaid. That there were no ditches along said track and through said cut sufficient to carry off the water that would naturally and ordinarily gather and flow through said cut and along said track during a rain storm; and that at said crossing and cattle guards, situated at the mouth of said cut, and at the place where said car left the track, as aforesaid, there were no ditches sufficient to carry off the water that would naturally and ordinarily flow through said cut, and gather at the mouth of said cut, where said road crossing and cattle guards were situated as aforesaid, during an ordinary rainfall; and as a result of such negligent construction and maintaining of said roadbed along said track and through said cut, and on account of insufficient ditches to carry off the water that fell during said day, and flowed along said track and through said cut, the water accumulated at the mouth of said cut, where said road crossing was situated, and overflowed said track for a long distance, extending from the mouth of said cut, and up the track of said company through said cut, for a distance of about five or six hundred feet; and that the engineer and agents in charge of said train, and upon which plaintiff's deceased son was riding, negligently and carelessly run his said train at a rapid rate of speed over said portion of the track that was overflowed by the water that had accumulated in the cut and at the road crossing, as aforesaid; and that a portion of the timbers of the road crossing at the mouth of said cut floated upon said track, and caused the derailment of the said cars and the death of plaintiff's son. That said engineer did or by the exercise of ordinary care could have observed that said track at said place was under water, and that it was his duty to have stopped his said train, and ascertain if it was dangerous to run over said track. That, if he had done so, he could have discovered said floating timbers upon said track at said place, and avoided said derailment of said cars and the death of said plaintiff's son. Plaintiff would further show: That said defendant company had before said 9th day of August, 1892, negligently and carelessly constructed, and was at said time maintaining, a defective and unsafe road crossing and cattle guard at a certain road crossing just west of said Sabinal bridge, and about one hundred yards from said bridge, and at and near the mouth of the said cut heretofore mentioned in this: Said road crossing and cattle guards were constructed of loose timbers, and were insecurely fastened; and on the day of said wreck, when the water flowed down said cut, as aforesaid, a portion of the timbers of the said road crossing and cattle guards floated upon said track and roadbed, as aforesaid, and the wheels of the cars ran over the same, and caused the cars to be derailed, as aforesaid, and the death of plaintiff's son, as aforesaid. That if said defendant company had exercised ordinary care in the erecting and maintaining said road crossing and cattle guards, and in fastening said timbers in said crossing and cattle guards, the same would not have floated upon said track at said time and place, and said derailment of said cars would not have occurred, and said plaintiff's son would not have been killed, as aforesaid. That defendant company knew, or by the exercise of ordinary care could have known, of said defective and unsafe condition of said crossing and cattle guards, but that plaintiff's son did not know, or by the exercise of ordinary care could have known, of said defective and unsafe condition of said road crossing and cattle guards. Plaintiff would further show that the rules of the defendant company required sectionmen and track walkers to be out during rainstorms, and ascertain if there was danger from overflows and washouts along any portion of their sections; and plaintiff shows that although a heavy rain was then falling at the time and place of the said wreck, and had been for some time prior thereto, there were no sectionmen or track walkers out over said portion of said road where said wreck occurred to give warning to said approaching train upon which plaintiff's son was riding, although said defendant company knew that the place where said wreck occurred was a dangerous and unsafe portion of its roadbed and track during an ordinary rainstorm, and although said sectionmen and said track walkers were at said time located within three hundred yards of the place where said derailment occurred. Plaintiff shows that, if said track walkers and said sectionmen had performed their said duty as the rules of the said company required them to do, they could and would have discovered said track overflowed and said timbers floating upon said track, and could and would have warned said engineer of said approaching train of such danger of said derailment, and...