International & G. N. R. Co. v. Hall
| Decision Date | 20 April 1904 |
| Citation | 81 S.W. 82 |
| Parties | INTERNATIONAL & G. N. R. CO. v. HALL et al.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Falls County; Sam R. Scott, Judge.
Action by Angelina Hall and others against the International & Great Northern Railroad Company. Judgment for plaintiffs. Defendant appeals. Reversed.
N. A. Stedman, Martin & Eddins, and Walles S. Baker, for appellant. Rice & Bartlett, for appellees.
This is an action by Angelina Hall, for herself and as the next friend of her minor children, against the appellant, for damages resulting from the death of Dave Hall, her husband, and father of the minors, alleged to have been carelessly and negligently killed by one of appellant's locomotives running over him when operated along its line of road in one of the public streets of the town of Marlin, Falls county. Appellant pleaded general demurrer and general denial and contributory negligence. Verdict and judgment were in favor of appellees for $5,000 actual damages. The appellant has appealed.
It appears from the facts that the deceased, Dave Hall, while walking on the railroad track, which was located on one of the public streets of the city of Marlin, was killed by one of the engines of appellant, to which was attached a tender, backing over and against him. At the time of the accident the railroad in question was known as the Calvert, Waco & Brazos Valley Railway. A special act of the Legislature, of which the courts will take judicial notice, by its terms empowered and authorized the International & Great Northern Railroad Company to purchase the Calvert, Waco & Brazos Valley Railway, and made the purchasing road liable and responsible for all the liabilities of the road purchased. There is parol evidence in the record that subsequent to the accident the International & Great Northern Railroad Company had purchased the Calvert, Waco & Brazos Valley Railway. The appellant, by an assignment of error, complains of this evidence on the ground that parol testimony of the purchase was not admissible. We cannot agree with this contention. If the witnesses who testified to the fact knew of the purchase of the defaulting road, by the International, we see no reason why such testimony should not be admitted.
The second proposition urged by the appellant under the assignments that raise this question is to the effect that, if the purchase was established, there was no evidence of the liability of the International Road for the acts of negligence of the Calvert, Waco & Brazos Valley Railway Company. The act of the Legislature under which the International acquired this road makes the former liable and responsible for the liabilities of the road so purchased, and this act the courts will take judicial knowledge of.
Without discussing appellant's twelfth and thirteenth assignments of error, we are content with the statement that they should be overruled, for, in our opinion, the verdict is not excessive, and the facts are of such a character that the jury was authorized to draw the conclusion that the deceased was not necessarily guilty of contributory negligence at the time he was killed. The railroad in question was located along one of the used and traveled streets of the city of Marlin. The court instructed the jury that pedestrians had the equal right...
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