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

• Decision Date: 09 December 1899
• Citation: 54 S.W. 1079
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. BELLEW.
• Court: Texas Court of Appeals

54 S.W. 1079

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

Court of Civil Appeals of Texas.

December 9, 1899.

Appeal from district court, Hunt county; T. D. Montrose, Special Judge.

Action by Z. T. Bellew against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Reversed.

T. S. Miller and Head, Dillard & Muse, for appellant. Evans & Elder, for appellee.

CONNER, C. J.

This is a suit for damages on account of personal injuries alleged to have been done appellee, and occasioned by the negligence of appellant. The injuries were received on or about appellant's right of way in Hunt county, and were occasioned by a horse driven by appellee becoming frightened at an approaching and passing train, and running away, kicking the buggy to pieces, and injuring appellee. The trial resulted in a judgment for appellee in the sum of $1,750. The facts show that in the vicinity of the accident or injury in question appellant's line of railway extended approximately north and south, and that what is known as the "Emory and Lone Oak Road" approached the right of way from the southwest at an angle of about 45°, It thence extended on the right of way for the greater part of the distance, about 400 yards. The road then turned west to Lone Oak. The proof shows that upon the day in question appellee, driving a single horse to the buggy, and with the top up and back curtain down, drove on the right of way in question on his way to Lone Oak. Before getting on the right of way he stopped and listened and looked, but saw or heard no approaching train. He then continued his journey, and when at some point between where he drove onto the right of way and where the road turns west to Lone Oak he heard the noise of an approaching train, whereupon he whipped up his horse in the effort to get out of the lane at the point where the roads turns west to Lone Oak, but was unable to do so before the train ran up behind him. The animal he was driving became frightened, and ran, and about the time the train got even with him began to kick, wrecking the buggy, kicked appellee a number of times, and seriously injured him. It is an open, level prairie country for some distance on either side of the locus in quo. It is slightly down grade for some distance to a point near a crossing between the point of approach and departure as above indicated, and from thence extending north for some distance it is up grade. The train made but little noise coming down said grade, but in going up the noise was increased. The road in question, it appears, had been in use many years, and had in fact been a public road prior to the location and construction of the railway in question, and thereafter had extended and had been continuously used as stated for more than 10 years prior to the accident. A logical inference from the testimony is that in going to the point of appellee's destination there was no other way to travel. Appellee had traveled this road but a few times. It was alleged that appellant was guilty of negligence in the manner of its approach at the time in question, and in failing to give the proper and usual signals, and in the failure to slacken the speed and abate the noise of the approaching train; that appellant's employés and servants in charge of the train saw, or by exercise of reasonable diligence could have seen, appellee's perilous position, and have avoided the injuries. On the trial, the court, among other things, charged the jury that if they "believed, from the evidence, that the employés of the defendant company in charge of said train knew that the said animal was frightened and running away, or by the exercise of ordinary care they could have known this fact (if it was a fact), and that such fright was caused by the approach of such train, and the noise thereof, and that the employés in charge of said train could, by the exercise of ordinary care, have slackened the speed or lessened the noise of said train, that a failure to do so was negligence," as before defined.

Appellant in its first, eighth, ninth, tenth, eleventh, and fifteenth assignments of error, in objections to the charge given and to the refusal of special charges requested, insists that the court was in error in placing upon appellant in his charge the burden of ordinary care to ascertain appellee's position. It is insisted that the true rule of law in such case is that appellant would only be liable if the employés in charge of the train actually saw that the animal was frightened, and running away, and they knew such fright was caused by the train; and the cases of Hargis v. Railway Co., 75 Tex. 19, 12 S. W. 953, and Beaumont Pasture Co. v. Sabine & E. T. Ry. Co. (Tex. Civ. App.) 41 S. W. 190, are invoked as sustaining this position. It is insisted, in effect, that appellee was a trespasser upon appellant's right of way, and that it was not incumbent upon those operating its trains to keep a constant lookout to avoid injuries to those thereon without right. We are of opinion that the principle announced in the cases cited and contended for herein is not applicable to the facts of this case. In the record before us it is unquestioned that the traveling public used the road as it was used by appellee for many years without protest appearing in the record on the part of appellant. Whether this amounts to a license or a mere permissive use, we think, under such circumstances, appellant would be required, and its agents and employés would be required, to exercise ordinary care to avoid...