International & G. N. Ry. Co. v. Lee

• Decision Date: 16 January 1896
• Citation: 34 S.W. 160
• Parties: INTERNATIONAL & G. N. RY. CO. v. LEE.
• Court: Texas Court of Appeals

34 S.W. 160

INTERNATIONAL & G. N. RY. CO. v. LEE.

Court of Civil Appeals of Texas.

January 16, 1896.

Appeal from district court, Harris county; S. H. Brashear, Judge.

Action by Martha Jane Lee against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Robt. G. Street, for appellant. Jones & Garnett, for appellee.

GARRETT, C. J.

The appellee, joined by her minor daughter, Margie Lee, brought this suit in the district court of Harris county against the appellant and the Galveston, Houston & Henderson Railroad Company to recover damages for the negligent killing of Louis G. Lee, appellee's husband. The daughter died after the institution of the suit. The Galveston, Houston & Henderson Railroad Company had a verdict and judgment in its favor. Lee was upon the track of the appellant in its switchyard in the city of Houston between the town and his residence in the southern suburbs when he was struck and killed by the engine of an incoming passenger train about 9:30 o'clock p. m. Appellant's track was in common use as a footway, with its knowledge, by persons going to and fro between points in the town and the suburbs, and deceased had used it for seven years. There was also a beaten path along the side of the track. The place where the accident occurred was a part of appellant's switchyard, and was on its private property, 1,350 feet south of the depot. There was no street crossing there. The track was not inclosed. There had been no change in the track, yard, or switch. Deceased's body was found upon the track in a mangled condition. One foot was fastened in the frog of a switch which led off from the main track going north. It lay a few feet north of the switch frog; but there was evidence tending to show that a stick which belonged to Lee, one or two fingers, and some blood were found from five to ten feet south of it. There was only one eyewitness to the accident, and that was William Pressley, who testified that he was walking along the track, going home, and saw a man on the track 2 or 2½ blocks ahead of him (500 or 625 feet). He saw him by the headlight of the engine, but did not pay much attention to him until the train struck him. Witness knew deceased, and saw and recognized the body. Deceased was standing at the place where his foot was found fastened, and seemed to be waving his body as if exercising himself. The train was running at the rate of from 25 to 30 miles an hour, and did not stop, after it struck Lee, until it reached the depot. Witness did not know what direction deceased was going. By other witnesses the speed of the train is fixed at a rate from 5 to 8 miles an hour. Neither the engineer nor fireman saw the deceased, and did not know that he had been struck until some time afterwards.

Appellee has objected to our consideration of appellant's brief as not being in compliance with the rules, but we think that the assignments are sufficient in substance, and are sufficiently presented, to require us to consider the questions we shall pass upon. As a fact of negligence on the part of appellant the appellee averred in her petition that, knowing that persons were constantly using its tracks as a footway, the appellant had failed to block or fill in the switch, and that it was in an open and dangerous condition, and liable to cause one's foot to be caught therein; and, as to the cause of the accident, that as deceased attempted to get off the track to...