Missouri, K. & T. Ry. Co. of Texas v. Milburn

• Decision Date: 23 December 1911
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. MILBURN.
• Court: Texas Court of Appeals

142 S.W. 626

MISSOURI, K. & T. RY. CO. OF TEXAS v. MILBURN.

Court of Civil Appeals of Texas. Dallas.

December 23, 1911.

Rehearing Denied January 13, 1912.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Action by W. M. Milburn against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

Alex. S. Coke, A. H. McKnight, and Head, Smith, Hare & Head, for appellant. Wolfe, Maxey, Wood & Haven, for appellee.

RAINEY, C. J.

Appellee sued appellant to recover damages on account of personal injuries sustained by his wife, as the result of being struck by an engine of appellant while she was traveling on Nelson street in the city of Denison. Defendant pleaded contributory negligence; that she did not use proper care and precaution to advise herself of the approach of the train; that she carelessly selected an unsafe and dangerous way to travel when there were safe routes she could have traveled; and that it was negligence in her stopping and placing her foot on a rail of the track to tie her shoe string, and in not keeping a proper lookout while so doing. A trial resulted in a verdict and judgment in favor of plaintiff for $1,500, and the defendant appeals.

The evidence shows that in Nelson street the appellant has two tracks running east and west over which it operates many trains daily. Between the tracks is a space of nine feet, which space is habitually and commonly used by many pedestrians. There is a wagon road in said street south of the railroad tracks, but very sandy. There are no sidewalks, that are kept in repair, so pedestrians commonly use the space between the tracks which is better for walking. Mrs. Milburn was walking along this street in the space between the two tracks on her way home from a grocery store. While so traveling a train came up behind her, going west on the north track. After it passed she looked up and down the track, and seeing nothing she laid her bundles down, placed one foot on a rail and tied her shoe string. When she raised up an engine attached to a caboose on the south track going east ran upon and injured her. Said engine was running at a rate of speed which exceeded the limit, and not ringing a bell, as prescribed by an ordinance of the city of Denison. Mrs. Milburn was in a dangerous position, and her position was seen by the operatives of the train in time to have stopped the train to prevent injuring her, but said operatives were negligent in not using the means at hand to so stop it. They were also negligent in not keeping a lookout for persons on the track as they could have seen her in time to have prevented injuring her. Under the circumstances she was not guilty of such contributory negligence as will prevent a recovery. There were two or three streets that Mrs. Milburn could have traveled in going home, which would have been safe and about as near.

Appellant requested instructions directing a verdict for defendant on two grounds: First, insufficiency of the evidence; second, the evidence shows Mrs. Milburn was guilty of contributory negligence; third, the evidence does not raise the issue of discovered peril.

The first proposition presented under these assignments is: "A pedestrian who voluntarily walks or stands upon or near a railway track when a safe way or place could, without inconvenience or trouble, have been chosen, is guilty of negligence and assumes the risk as a matter of law in choosing the dangerous way or place." While this proposition is ordinarily correct, we do not think it applicable to the facts of this case. The proof showing that Nelson street was a public highway — one...