Houston & T. C. R. Co. v. Red Cross Stock Farm
| Citation | 53 S.W. 834 |
| Parties | HOUSTON & T. C. R. CO. v. RED CROSS STOCK FARM. |
| Decision Date | 29 November 1899 |
| Court | Court of Appeals of Texas |
Appeal from Travis county court; A. S. Walker, Judge.
Action by the Red Cross Stock Farm against the Houston & Texas Central Railroad Company for damages. There was a judgment for plaintiff, and defendant appeals. Reversed.
W. T. Burns, for appellant. John Dowell, for appellee.
This action originated in the justice's court, and from there was appealed to the county court. Judgment was rendered in favor of Mrs. Annie Mitchell, doing business under the name of the Red Cross Stock Farm, against the railroad company, for the sum of $125, the value of a certain cow, alleged to have been killed by one of the locomotives of the railroad company. The complaint filed in the justice's court is in the name of the Red Cross Stock Farm as plaintiff against the railroad company, wherein it is charged that the cow in question was the individual property of Mrs. Annie B. Mitchell, doing business under the name of the Red Cross Stock Farm. The grounds of negligence alleged are that the railway track was not properly fenced where the cow was killed, and that the cattle guard at that place was defective and insufficient, in that an animal could walk over the same, and get onto the track; and that at the place where the cow was killed she could have been seen by those operating the train at the distance of half a mile; and inferentially it is alleged that by reason of that fact she was negligently killed. The citation issued in the case substantially alleges the claim and the negligence as before stated, and that the plaintiff sued for the sum of $125, the market value of the cow; and that the husband of Mrs. Annie Mitchell joined her pro forma for the purposes of this suit. The defendant in the court below, under what is termed a "plea of misjoinder of plaintiffs," objected to the capacity in which the plaintiff sued as the Red Cross Stock Farm, because it does not appear that the same is a joint-stock company or corporation; therefore it cannot sue or be sued. And that it also appears that Mrs. Annie Mitchell was a married woman at the time of the accrual of the cause of action, and therefore she was an improper party. This plea was followed by a general denial.
There is a conflict in the evidence as to the locality of the cow upon the track at the time she was killed. Plaintiffs' witnesses testified that the fence and cattle guard were defective, and that the cow, at the time she was killed, was standing on the railway track at a place where it was fenced. And the effect of the evidence coming from the plaintiffs upon this subject is that, in order for the cow to have gotten on the track at that point, she must have necessarily gone onto the track through the defective fence, or over and along the defective cattle guard. They also testified that the cow could have been seen from the direction from which the train was coming for over half a mile, and that the train was going at the rate of about 20 or 25 miles an hour, and that no effort was made to stop. The evidence offered by the railway company is to the effect that the cow, when killed, was on the track where a public road crossed it, and that in attempting to cross in front of the engine she was struck and killed; that the engineer or the fireman saw the cow, with other cattle, crossing the track, about 60 yards from the public road; that the stock whistle was immediately blown; that the track was not straight; and the inference to be drawn from their testimony upon this subject is that cattle crossing the track at the public road could not have been seen the distance testified to by the plaintiffs; that, after the cow was discovered crossing the track, it was impossible to stop the train in time to prevent striking her. There is also evidence, offered by the railroad company, to the effect that the fence on the right of way and the cattle guard complained of were in good condition.
The court instructed the jury that it was the duty of the railway company to cause the whistle of the engine to be blown and the bell rung at a distance of at least 80 rods from the place where the railroad crosses a public road, and that the bell should be kept ringing until the...
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