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

• Decision Date: 23 May 1895
• Citation: 31 S.W. 326
• Parties: GALVESTON, H. & S. A. RY. CO. v. WINK.
• Court: Texas Court of Appeals

Page 326

31 S.W. 326

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

Court of Civil Appeals of Texas.

May 23, 1895.

Appeal from Colorado county court; Charles Riley, Judge.

Action by Louis Wink against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Brown, Lane & Jackson, for appellant. W. S. Delany, for appellee.

GARRETT, C. J.

Louis Wink brought this suit in the justice's court for the recovery of damages for the negligent killing of a horse which was struck by a locomotive on appellant's track. The accident occurred in the town of Alleyton, at a street crossing within the switch limits, at a place where the railroad track could not be fenced, on the evening of April 2, 1894, at about 8 o'clock. Alleyton is a town of some importance, with several stores and residences, and with streets laid off crossing the track. According to the defendant's witnesses, the train was running about 20 miles an hour. Plaintiff's witnesses testified that it was running very fast; at least 30 miles an hour. It was a heavy freight train, running east, on a down grade, and was not to stop at Alleyton. The engine whistled for the station when it was within a mile west of it, and the place where the horse was killed was about 150 yards west of the station. Appellee lived about 150 yards north of the railroad track, near the crossing, and had a pasture south of it, to which two servants of the appellee were taking several horses belonging to him. One of the servants was in front, riding one horse, and leading two others. The other servant had turned the other horses out of the lot, to follow. Both of them heard the train approaching just after the horses were turned out, and the man in front endeavored to prevent the loose horses from passing him, but two of them got past him, and one of them ran upon the track, and was killed.

We are of the opinion that there are no circumstances developed by the evidence to show that the appellant was negligent in running the train at the speed it was running. The evidence that Alleyton is a town of some importance, with several stores and residences, and with streets crossing the track, does not show that it would be negligent to run a train through the town at the rate of 30 miles an hour. While the witnesses stated that the train was running very fast, it was not shown that it was running at an unusual rate of speed. There is no law that forbids trains from running fast...