Mack v. Houston E. & W. T. Ry. Co.

• Decision Date: 04 February 1911
• Citation: 134 S.W. 846
• Parties: MACK et ux. v. HOUSTON E. & W. T. RY. CO.
• Court: Texas Court of Appeals

134 S.W. 846

MACK et ux. v. HOUSTON E. & W. T. RY. CO.

Court of Civil Appeals of Texas.

February 4, 1911.

Rehearing Denied February 23, 1911.

Appeal from District Court, Polk County; L. B. Hightower, Judge.

Action by Henry Mack and wife against the Houston East & West Texas Railway Company. From a judgment sustaining a general demurrer and dismissing the action, plaintiffs appeal. Reversed and remanded.

F. Campbell, for appellants. Baker, Botts, Parker & Garwood, J. C. Feagin, and J. S. McEachin, for appellee.

REESE, J.

Henry Mack and wife bring this suit against the Houston East & West Texas Railway Company to recover damages for the death of their son, Ellis Mack, 15 years of age, alleged to have been occasioned by the negligence of defendant. The trial court sustained a general demurrer to plaintiffs' petition, and, plaintiffs declining to amend, dismissed the suit. From the judgment of dismissal, plaintiffs appeal.

The petition alleged that appellee had a depot or station for receiving and discharging freight and passengers and the United States mails at a place called Bering on its line of railway; that, instead of bringing its trains to a stop to take on and put off the mails, appellee constructed at said station and alongside its track a machine called a "mail crane," by means of which the mail pouches were taken on and put off while trains were running at a high rate of speed, and that this machine was so negligently constructed that the steps thereto, which were designed to be suspended by hooks when not in use, would fall from the fastenings when trains moved by; that the defects in said machine were well known to appellee, but wholly unknown to the said Ellis Mack; and that appellee continued to use said crane without warning to any one of its danger. The crane was located on the depot grounds where people were in the habit of congregating on the arrival and departure of trains. The petition further alleged: "That a lumber manufacturing plant was situated at said station, and that said manufacturing company owned and maintained a commissary or store by the full consent of defendant company, immediately by the track of said railroad, which said storehouse was used by defendant company as a warehouse and passenger ticket office. That within the said building operated as said warehouse and ticket office the United States post office was by consent and knowledge of defendant company kept and maintained, and all persons were by permission and action of defendant company invited upon said depot premises, especially those in the employ of said lumber manufacturing concern, as was the plaintiffs' said son on the day he was killed. That the plaintiffs' son, Ellis, was in the employ of said lumber manufacturing concern, and that by virtue of the invitation of defendant company as aforesaid and the plaintiffs' said son's duties to his employer he was upon said defendant's grounds, and the plaintiffs' son did have a right to, and did expect, an ordinary degree of safety while upon said grounds. That on June 16, 1907, the plaintiffs' son, Ellis Mack, was standing near the mail crane and at a safe distance from the defendant's track, when one of defendant's passing trains caused said steps to fall from their fastening, struck the plaintiffs' son, Ellis, and knocked him upon the railroad track and under the said moving train. That the wheels of defendant's cars passed over their son's body, killing him instantly." There were further allegations showing the damages sustained by appellants from the death of their son. Under appropriate assignment of error appellants question the correctness of the ruling of the trial court sustaining the general demurrer.

From the brief of appellee we gather that the ground of demurrer relied upon, and which determined the court's ruling, is that, according to the allegations of the petition, Ellis Mack was a mere licensee, so far as his being upon the premises and at the place where he was injured were concerned, and appellee owed him no duty to keep the premises in a safe condition. We recognize fully the rule in this regard as to licensees; that is, persons who are not trespassers, but are upon the premises of another merely by his permission, expressed or implied, and not by any express or implied invitation. The law on this point is well settled, and if Ellis Mack was a mere licensee, as the case is stated in the petition, there was no error in sustaining the general demurrer. The machine in question was not a trap calculated to catch the unwary, nor was the deceased injured by any negligent act occurring after he came on the premises. But was he a mere licensee? We are familiar...