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

• Decision Date: 25 May 1896
• Citation: 36 S.W. 63
• Parties: LEE v. INTERNATIONAL & G. N. R. CO.
• Court: Texas Supreme Court

36 S.W. 63

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

Supreme Court of Texas.

May 25, 1896.

Error to court of civil appeals of First supreme judicial district.

Action by Martha Jane Lee against the International & Great Northern Railroad Company and another. There was a judgment of the court of civil appeals (34 S. W. 160) reversing a judgment for plaintiff against the defendant railroad company, and said plaintiff brings error. Case remanded to district court for trial.

Jones & Garnett, for plaintiff in error. Robert G. Street and John M. Duncan, for defendant in error.

BROWN, J.

Martha Jane Lee and her minor daughter, Margie Lee, sued the International & Great Northern Railroad Company, and the Galveston, Houston & Henderson Railroad Company to recover damages for the death of Louis G. Lee, husband of Martha Jane, and father of Margie. Before the trial Margie Lee died, and the suit was prosecuted by Martha Jane Lee. The petition alleged that the deceased, Louis G. Lee was killed by the negligence of the employés of the defendants in a switch yard within the corporate limits of the city of Houston. The grounds of negligence alleged were that the switch yard and tracks of the railroad companies at the point in question had been for a long time used by the people as a passway in going to and from the said city, which was well known to the defendants, and that they failed to block or otherwise guard the frogs of the switches in the said yard, by reason of which the deceased, in passing over the said yard, and in attempting to get off the track of the railroad to permit the train to pass, got his foot fastened in a frog of a switch in the said track, whereby he was run over by the train of the defendants and killed. It was also alleged that there was an ordinance of the city of Houston forbidding trains upon all railroads to be run within the limits of said city at a greater rate of speed than six miles per hour; that, at the time the deceased was killed, the employés of the defendants were running the train at a speed of from 25 to 30 miles per hour; that, if they had been running the train at a proper speed, they could have discovered the deceased, and stopped the train in time to prevent running over him, but, on account of the speed of the said train, the employés failed to stop the said train, or to discover the deceased upon the track. Upon a trial before a jury, verdict and judgment were rendered for the Galveston, Houston & Henderson Railroad Company against the plaintiff, and in favor of the plaintiff against the International & Great Northern Railroad Company, from which judgment the International & Great Northern Railroad Company appealed to the court of civil appeals. The facts, as found by the court of civil appeals, material to the question to be considered by us, are, in substance, as follows: The International & Great Northern Railroad Company had a switch yard within the limits of the city of Houston, situated on its own property, and in which yard there was a frog, connecting a switch with the track, which was unblocked, and not otherwise protected, so as to prevent the foot of any person stepping therein from becoming fastened. At the point where this frog was located there was no street crossing. Along the side of the track there was a beaten path, where people walked in passing through the yard. Louis G. Lee lived in the suburbs of the city of Houston, and was employed in the said city. He had for seven years, in going to his home from the city, passed through the switch yard of the defendant, and was familiar with the yard, and location of its tracks, switches, and frogs. For several years people who lived in the same direction as Lee from the city had been accustomed, day and night, to pass through the yards on foot, which was known to the defendants. On the night of the accident, about 9:30 o'clock, the deceased was going home, and passing through the yards, when a freight train of the defendant the International & Great Northern Railroad Company was coming in, and passing through the said yards, within the limits of the city of Houston, running at a speed of about 25 or 30 miles per hour. There is no evidence that there was any light in the yards, except that which was afforded by the headlight of the locomotive pulling a freight train. There was but one eyewitness to the accident, who testified that, by the headlight of the train, he saw Lee at a distance of about 600 feet from him, exerting himself, and standing about the place where his foot was afterwards found fastened in the frog. When the body of Lee was found, it was badly mangled, and one of his feet was found fastened in the frog of the switch. The engineer and fireman did not discover Lee, and never knew that he was run over and killed until they had reached the depot. There was an ordinance of the city of Houston, in force at the time, which prohibited railroad trains to be run within the limits of the city at a speed greater than 6 miles per hour. The frog of the switch in which deceased's foot was found was not blocked, or otherwise protected, to prevent the foot of any person who might step therein from being fastened. The court of civil appeals reversed the judgment of the district court, and remanded the cause, and in the opinion stated the following grounds, which we here copy: "Upon the other charge of negligence, that the servants of appellant, in control of the engine, were running the train at an excessive rate of speed, and but for such excessive speed could have discovered the deceased in time to have prevented the injury, there is sufficient evidence to support the verdict of the jury. It therefore becomes necessary to inquire whether the deceased was guilty of negligence contributing to the accident which resulted in his death. Appellant's servants were bound to use reasonable care to discover the deceased upon its track. The use thereof as a footway was not negligence of itself, and the circumstances under which he went upon it are merely evidence upon the issue of contributory negligence. * * * Giving full effect to the verdict upon the testimony before the jury, the accident resulted from the fact that Lee's foot was caught in the switch; but the evidence shows that it was caught under such circumstances as to imply negligence on his part, and fails to develop facts as to how it got caught, or to show that the deceased was exercising proper care at the time. He was well acquainted with the yard, the location of the switch, and condition of the track. It was dark at the time, and it does not appear that the place was at all lighted. The conclusion necessarily follows that the deceased came to his death by his own negligence." Martha Jane Lee brings the case to this court upon allegation that the decision of the court of civil appeals practically settles the case.

The court of civil appeals found as a fact, in this case, that the employés of the defendant were guilty of negligence in operating the train which caused the death of Louis G. Lee, and that the railroad company was liable to the plaintiff, unless the deceased was guilty of such negligence, contributing to his death, as would have prevented a recovery by him if alive. In order for the railroad company to relieve itself from liability for the negligence of its servants, the burden was upon it to prove the contributory negligence of the deceased, unless it appeared...