International & G. N. Ry. Co. v. Matthews Bros.

• Decision Date: 18 June 1913
• Citation: 158 S.W. 1048
• Parties: INTERNATIONAL & G. N. RY. CO. v. MATTHEWS BROS.
• Court: Texas Court of Appeals

Page 1048

158 S.W. 1048

INTERNATIONAL & G. N. RY. CO. v. MATTHEWS BROS.

Court of Civil Appeals of Texas. Austin.

June 18, 1913.

Appeal from Montgomery County Court; S. A. McCall, Judge.

Action by Matthews Bros. against the International & Great Northern Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

W. M. Williams and A. L. Kayser, both of Conroe, for appellant. S. A. Crawford, of Willis, for appellees.

RICE, J.

On the night of December 18, 1911, one of the appellees' horses was found injured on appellant's track in the town of Willis, from the effects of which it died, and this action was brought by them in the justice's court against appellant to recover damages therefor. A trial there having resulted in favor of appellees, an appeal was taken to the county court, where a similar judgment was had against appellant, from which this appeal is prosecuted.

After general demurrer and general denial, appellant pleaded specially that the horse, if killed by it, was killed in the settled portion of the town of Willis and within its switch limits, where public necessity and convenience required its track to be left unfenced. The evidence showed that the animal was found with both legs broken lying on the track within the switchyard of appellant, a place not required to be fenced. Railway v. Blankenbeckler, 13 Tex. Civ. App. 249, 35 S. W. 331. Hence, before the appellees were entitled to recover, they must show that the appellant was guilty of negligence in respect to such killing, and that the same was the proximate cause thereof.

Has this been shown by the evidence? We think not. It is true that the proof shows that the animal was found injured as above described on the railway track, and that it was likely struck by a passing train, most probably by the 4 o'clock morning train going south, which it appeared from the testimony ran very fast through the town, without blowing the whistle or sounding the bell; but it has been held that this, in and of itself, does not show negligence. See T. & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S. W. 1049; Elliott on Railroads, §§ 1204-1586. No witness saw the accident, and the details are not given, and we are left entirely to conjecture as to how it occurred. It might be concluded that the animal was on the track, and the engineer saw it in time to have prevented the injury, and that he was negligent in failing to do so, and, if these facts were shown, it would be our duty to sustain the judgment; but we may just as easily infer that the animal, when the train came along, was frightened by its noise, and suddenly ran in front thereof and was killed, without fault of the servants of the company, and, if so, no recovery could be had. It is true it is shown that the track was straight, and the bell was not rung or the whistle blown;...