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

• Decision Date: 28 February 1903
• Citation: 72 S.W. 871
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. JOLLEY.
• Court: Texas Court of Appeals

72 S.W. 871

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

Court of Civil Appeals of Texas.

February 28, 1903.

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Action by A. W. Jolley against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Reversed.

T. S. Miller and Head & Dillard, for appellant. W. E. McMahon, Richard B. Semple, and Thos. P. Steger, for appellee.

RAINEY, C. J.

Appellee sued appellant to recover for personal injuries alleged to have resulted to him from being thrown from his buggy by reason of his horse becoming frightened at a car standing on appellant's track, and partly in the street along which plaintiff was traveling. Verdict and judgment for plaintiff.

The accident occurred at Bells, where the appellant's road and that of the Texas & Pacific Railway Company cross. These two roads have and maintain there a joint depot and yards, having a joint agent in charge. They have certain Y and switch tracks, which are used by both. One of the tracks is known as the "team track," on which cars containing merchandise for customers at Bells are left to be unloaded by such customers. The car at which plaintiff's horse had become frightened had been brought in and left there by a local freight train operated solely by the servants of the Texas & Pacific Railway Company to be unloaded by one of its customers, and with and over which appellant had no connection or control whatever. The street crossed the tracks there, it being a public thoroughfare, and the car was left standing partly in the street, with room enough for vehicles to pass. The plaintiff was traveling in his buggy west, and first came to the east Y track, on which a car of appellant had been left close to the north side of the street to be taken up by the Texas & Pacific and transported to some point on its line. When passing this car, plaintiff's horse showed slight evidence of fright, and he tapped him with his whip. When he approached the second car—the one left on the team track by the Texas & Pacific—the horse became frightened, backed the buggy, and threw plaintiff out, and he was injured as alleged.

The evidence fails to show liability on the part of appellant. While it does not definitely appear what agreement or arrangement existed between said companies relative to the use of said track, we take it that under the circumstances said use by either was not illegal. Article 4440, Rev. St., provides for the crossing, etc., of railways, and for the construction of necessary turnouts, sidings, and switches, and other conveniences in furtherance of the objects of such...