International & G. N. R. Co. v. Wear

• Decision Date: 17 November 1903
• Citation: International & G. N. R. Co. v. Wear, 77 S.W. 272, 33 Tex. Civ. App. 492 (Tex. App. 1903)
• Parties: INTERNATIONAL & G. N. R. CO. v. WEAR et al.
• Court: Texas Court of Appeals

77 S.W. 272

INTERNATIONAL & G. N. R. CO. v.WEAR et al.

Court of Civil Appeals of Texas.

November 17, 1903.

Appeal from District Court, Smith County; R. W. Simpson, Judge.

Action by Bob Wear and another against the International & Great Northern Railroad Company.From a judgment for plaintiffs, defendant appeals.Reversed.

N. A. Stedman and Gould & Morris, for appellant.F. J. McCord & N. A. Gentry, for appellees.

PLEASANTS, J.

This is a suit by appellees against appellant to recover damages for the loss of their son, whose death is alleged to have been caused by the negligence of appellant's employés.The petition alleges, in substance, that plaintiffs' son Wesley Wear, while attempting to cross defendant's track at a public road crossing near the city of Tyler, in Smith county, was run over and killed by a passenger train on defendant's railroad; that at the time said Wesley was killed he was only 10 years of age, and had a weak and immature mind, and did not have the mental capacity or discretion to understand and appreciate the danger attending the moving of engines; that he had no knowledge of the velocity of a train in motion, and did not know the danger of attempting to cross a railroad track in front of an approaching train; that the employés of defendant who were operating said train saw the said Wesley and other children running along the public road toward said crossing, and could tell by the manner in which they were running that they would attempt to cross the track in front of the approaching train; and that the death of said Wesley was caused by the negligence of the employés of defendant operating said train "in negligently running said train and approaching said crossing at a high rate of speed, to wit, 40 miles an hour, and in not having said train under control in approaching said crossing; that the engineer in charge of said train saw the danger and peril of plaintiffs' son, yet, seeing his peril and danger, he negligently failed to stop said train, or to use the appliances at hand to check the speed of said train to avoid killing said child or lessening his injuries; that had said engineer, when he saw the peril of plaintiffs' son, used the appliances at hand to check the speed of the train, any and all the injury and death of plaintiffs' son could have been avoided, but, seeing his danger and peril, said agents and servants in charge of said train moved over and across said public crossing onto and over your plaintiffs' son, and killed him."The defendant answered by general denial and plea of contributory negligence.The trial in the court below by a jury resulted in a verdict and judgment in favor of plaintiffs for the sum of $250.

The record discloses the following facts: On August 17, 1901, plaintiffs' son Wesley Wear, who was then 10 years old, in company with his brother, Harrison Wear, who was a few years older, attempted to cross defendant's road at a public road crossing near plaintiffs' home in Smith county just as a north-bound passenger train on said railroad was approaching the crossing, and was struck and killed by the...