"We deem it advisable to present to the Supreme Court of the state of Texas for adjudication the following issues of law arising in the above-entitled cause.
"Statement.
"This suit was instituted by appellee Mrs. Maggie Matthews, on behalf of herself and her minor children, against appellant, to recover damages sustained on account of the alleged negligent killing of her husband, J. L. Matthews. It is alleged in substance that J. L. Matthews on the 8th day of May, 1899, was walking along on appellant's railroad track within the corporate limits of the city of Ft. Worth, where said track was commonly and habitually used as a pathway by pedestrians with the knowledge, consent, and acquiescence of appellant; that, while so walking along and upon said track, the said J. L. Matthews was, by the negligence of appellant's servants operating one of its freight trains, in running such train within the city limits at a greater rate of speed than allowed by an ordinance of said city, and in negligently failing to ring the bell of the engine and to keep a lookout for persons who might be expected to be on its track, knocked down, run over, and killed by said train. Appellant pleaded the general issue, contributory negligence, and specially that appellant had posted along its road in the city of Ft. Worth warning notices to the public, to the effect that all persons not having business with the company were forbidden to sit, stand, or walk upon its railroad tracks, and were prohibited from walking on or crossing the tracks of the company, except at legally established crossings; that the company did not consent to such use of its track, and that no officer or agent of the company had authority, by acquiescence or otherwise, to consent to such use of the tracks, etc.; that J. L. Matthews was not walking along its track when struck by its train, but that he was lying down upon the same; that he had either been foully dealt with, and stunned or murdered and placed upon the track, or else that he was in a state of intoxication, and had walked upon appellant's track and lain down upon the same, or for some other reason was lying asleep or in a state of insensibility on the track, and that its servants in charge of said train did not discover him in time to prevent the injury; that by an ordinance of the city of Ft. Worth it is provided, in substance, that it shall be unlawful for any person to trespass upon the property of any corporation without its consent, and any person so doing shall be deemed guilty
of a misdemeanor, and, upon conviction, be fined any sum not exceeding ten dollars. A jury trial resulted in a verdict and judgment against appellant in the sum of $15,000, from which this appeal is prosecuted.
"J. L. Matthews owned a grading outfit, consisting of teams and tools, and had been working for the Santa Fé Railroad near Hudenheimer up to a few days before his death. He quit work near Hudenheimer, and his teams and grading outfit had been carried to Cleburne, Texas. On the afternoon of May 7, 1899, the day before he was killed, he left Cleburne for Ft. Worth, in company with T. W. Turner, expecting to get work either at a gravel pit in the city or from the Texas & Pacific Railway Company. Before leaving Cleburne, Matthews instructed one of his employés to carry the grading outfit across the country to Ft. Worth, and meet him at a certain watering trough on Main street about 3 o'clock p. m. on May 8th. About 10 o'clock p. m. on May 7th, Matthews and Turner separated at a hotel or lodging house on Main street, agreeing to meet next morning at 7 o'clock on Front street, and then go together to look for a camping place for the teams and grading outfit. Matthews told the clerk at this lodging house that he wanted to secure a bed, but did not care to go to sleep right then; that he was going away, but would be back in about one hour to occupy the bed. He was informed that he could get the bed, and about 10 o'clock p. m. he left in a state of intoxication, but did not return to occupy the bed.
"L. C. Andrews testified: `My name is L. C. Andrews; age, 43 years. I reside in Ft. Worth. Am a cooper by occupation or trade. At the present time I am in the employ of Armour & Co., of North Ft. Worth. On May 8, 1899, I resided in Ft. Worth, Texas, and was employed as night clerk at the Tremont Hotel, on Rusk street, just east of the courthouse. I am not acquainted with the plaintiffs, or any of them. Never saw them, that I know of. I did hear of the circumstances of the finding of the body of a dead man on the track of the defendant railway company near the Old Cemetery, in the city of Ft. Worth on or about the 8th day of May, 1899. I don't remember the date, but remember that it was along about that time. I heard of the matter through hearing people talk about it at the time. I met and got slightly acquainted with a man, who, I believe, was J. L. Matthews, on the night previous to the morning J. L. Matthews, deceased, was found dead on the Santa Fé Railroad, out near the Old Cemetery. I met him about 11 p. m. in the office of the Tremont Hotel in Ft. Worth, Texas. This man Matthews came into the hotel office and applied for a bed for the night. I let him have the bed, received payment from him for the bed for the night, and showed him his room. He occupied the bed that night. I know it was the night just preceding the morning on which the dead body of J. L. Matthews, deceased, was found on the Santa Fé track, out near the Old Cemetery. My only transaction with him was renting him a bed for that night, and receiving payment for it. He came in and asked me for a bed. We got into a short conversation after he had secured the bed. He told me that he had some teams on the road to Ft. Worth, and that he wanted to find some suitable grounds for a camp. He asked me where he could find some suitable grounds for a camp, and I told him I was not much acquainted with such as that, but I had seen people camped on the north side of the river, back of the jail, and also out along the Santa Fé track beyond the Old Cemetery. We had just a short conversation. I don't remember our exact words, but they were substantially as above. I know he wanted a place for his teams to camp, and I informed him of the two places where I had seen campers. Before going to bed on the night before, he told me to wake him up about 5 o'clock; that he wanted to get out and get a camp for his teams. I woke him up about 5:30 in the morning. I knocked at his door and awakened him. A few minutes after, he came downstairs and entered the office. It was necessary for him to come through the office, coming down from his room. I did have a short conversation with him that morning. He remained in the office a very short time. He again asked me about the camping grounds, and the directions to them. I gave him the directions to the place I had informed him about. He left, saying he was going to look out for a camping place. I never saw him after he left the office. I never noticed what direction he went after leaving the hotel office. The last time I saw him was in the office, as he was leaving, and it was about ten or fifteen minutes before 6 o'clock in the morning. It was daytime. I never saw him, dead or alive, after that. I cannot give a minute description of him. As I remember him, he was about five feet six or seven inches high, and would weigh about 135 or 140 pounds; had a light complexion; had on a brown or dark suit of clothes, and a black slouch hat. I don't remember whether or not he was clean shaven, or the color of his eyes. I only saw Matthews the two times—first at night, when I rented him the bed, and next in the morning, after he got up and came down to the office. I saw him only a short time on each of these occasions. The first time I saw him, when he came for the bed, he was drinking, but he was at himself. He could get along by himself. When he came down the next morning he was sober. The hotel at which I was working the night that Matthews was killed did keep a register. I did not enter Matthews' name on it. I saw he was drinking, and never required him to
register. He paid me cash for his bed. I afterwards inquired for his name, and got it, but neglected to place it on the register.'
"W. C. Prince was sexton of the Old Cemetery, near where the dead body of Matthews was found. On the morning Matthews was killed Prince saw one of appellant's trains pass, going north. About five or ten minutes before this train passed, he (Prince) saw two men walking on the railroad track, both going north. He was about thirty-five yards distant from them, and did not know who they were. They passed along on the track about sixty or seventy yards apart. Prince was then on his way to the cemetery, and, in a few minutes after this train passed, he saw several persons gathered at the scene of the accident, and went there, and saw the dead body.
"Clyde Baptist was a section hand in the employ of appellant, and lived at its section house. This section house was about fifty feet west of appellant's track at Peach street, which is about (¼) one-fourth of a mile south of where the dead body of Matthews was found. On the morning the body was found, he saw a man walking up appellant's railroad track, north. He did not know the man. The man he saw was about five feet and...
