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

• Decision Date: 10 December 1913
• Parties: MASSEY v. INTERNATIONAL & G. N. RY. CO. et al.
• Court: Texas Court of Appeals

162 S.W. 371

MASSEY v. INTERNATIONAL & G. N. RY. CO. et al.

Court of Civil Appeals of Texas. Austin.

December 10, 1913.

Rehearing Denied January 14, 1914.

Appeal from District Court, Falls County; Richard I. Munroe, Judge.

Action by Virginia Massey against the International & Great Northern Railway Company and another, receiver. From a judgment for defendants, plaintiff appeals. Affirmed.

Nat Llewellyn, of Marlin, for appellant. Neff & Taylor, of Waco, for appellees.

RICE, J.

On the early morning of June 12, 1910, the dead body of Ed Massey was found lying on or near the track of the I. & G. N. Railway, just a short distance south of Jones' Switch, a flag station on said railway, with his head split open; and this action was brought by appellant, his surviving widow, to recover damages therefor.

The petition is in two counts; the first seeking to recover on the ground that the track at the point where Massey was killed was commonly and notoriously used by pedestrians as a walkway, and that the employés of the company could have seen the deceased and avoided injuring him by the use of ordinary care, which they failed to exercise, and were thereby guilty of negligence. Second, that said employés discovered the deceased long before they reached him, but made no effort to keep from running over and killing him, but grossly, willfully, and deliberately ran upon and over him at a high rate of speed, etc.

There was a general denial and a special plea interposed by appellees, to the effect that deceased was a trespasser, drunk, and asleep on the track, and they owed him no duty to look out for him; and, further, that they were not required to exercise the same degree of care at night to discover him as would be required of them in the daytime.

The court instructed a verdict in behalf of appellees, and judgment was rendered accordingly, from which this appeal is prosecuted.

The evidence shows that the deceased lived at Eloise, a station on said railway some 15 miles south of Marlin, and on the evening before his death had gone to Marlin, and was returning on the night train, but for some purpose got off at Jones' Switch, an inter-mediate station, where he was last seen alive.

It seems to be the theory of the appellant that the deceased was run over and killed by the morning freight train, which passed Jones' Switch going north about 4:45 a. m., and some evidence is offered by her showing that a passing train blew several times at or near the point...