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

• Decision Date: 20 March 1909
• Citation: 118 S.W. 234
• Court: Texas Court of Appeals
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. DAVIS.

118 S.W. 234

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

Court of Civil Appeals of Texas.

March 20, 1909.

Rehearing Denied April 10, 1909.

Appeal from Hunt County Court; J. W. Manning, Judge.

Action by W. M. Davis against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Coke, Miller & Coke, Jno. T. Craddock, and B. M. McMahan, for appellant. John A. Stone, Jr., Wm. Pienen, and T. D. Starnes, for appellee.

BOOKHOUT, J.

This was a suit by appellee to recover of appellant the value of a mule claimed to have been killed by a locomotive or train of the defendant at a point about one mile north of Kingston in Hunt county, at or near a road crossing over the defendant's railroad. It was alleged that defendant's railroad track at said point was straight, and defendant's servants operating its train saw, or by the exercise of ordinary care would have seen, the said mule upon defendant's track in time to have checked the train and prevented injury to the mule; that defendant's track or right of way at the point where the mule was killed was unfenced, "in that the gate in the fence of the right of way was in a bad state of repair, in this: That said gate was without a latch or fastening of any kind, and stood open, so cattle or stock running at large could enter upon said right of way at will, and the said defendant negligently permitted said gate to stand open and unlatched, and to remain in a bad state of repair as above set out, and that, as a direct and proximate cause of defendant's negligence in the respects hereinabove set out, and through the negligence of its agents and servants, plaintiff's mule was struck and killed." Defendant answered by general demurrer, special exception, general denial, a special plea of contributory negligence, wherein it is alleged that defendant's railway track and right of way at the point where the mule was killed were fenced, and that plaintiff's mule entered upon the said right of way through a gate placed in the right of way fence for the accommodation, use, and benefit of the owner of the premises and his tenants, and that said gate was left open by the owner of said farm, or by his employés or tenants, or was left open by the plaintiff or those acting for him, and that the gate was provided with suitable and safe fastening, and it was not, at the time of the accident, open through any fault or negligence of defendant. A trial resulted in a verdict and judgment for plaintiff in the sum of $210, to reverse which defendant perfected this appeal.

Conclusions of Fact.

W. M. Davis was engaged in working the public roads of Hunt county. He, with the consent of the owner of the land, established his camp about a half mile north of Kingston on a place owned by Jesse Clark. The field in which he was camped contained a pool or tank of water. The plaintiff got in and out of the field in which he was camped by going south from his camp through a gate leading out of the inclosure into the public road. This public road runs east and west, and extends from Celeste to Kingston. The railroad track and right of way runs through the farm of Jesse Clark from the northwest in a southeasterly direction, and is fenced. About 70 yards southeast of Davis' camp there is a gate in the west right of way fence. Appellee also used this gate in reaching the public road. There is also a gate in the east fence of the railroad right of way. These gates had been there for five or six years, and were put there by the railroad at the request of Jesse Clark, the owner of the farm. The gate in the right of way fence on the west side stood open part of the time, and part of the time it was shut. There was a farm crossing over the railroad between these gates. The gate in the west right of way fence was swung to the south post, and opened towards the right of way. It had a chain attached to it with baling wire, with which the gate was to be fastened. The fastening consisted of two nails driven in the gate post, one a tenpenny nail and the other much larger. The chain was not long enough to reach the larger nail, but was of sufficient length to reach the tenpenny nail, to which it could be fastened. The plaintiff worked eight mules, and at night they were tied to the feed wagon. On the night of October 27, 1907, one of...