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

• Decision Date: 01 February 1908
• Citation: 107 S.W. 642
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. HOLLAN.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

107 S.W. 642

MISSOURI, K. & T. RY. CO. OF TEXAS v. HOLLAN.^*

Court of Civil Appeals of Texas.

February 1, 1908.

Rehearing Denied February 15, 1908.

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

Action by H. A. Hollan against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

Appellee on August 30, 1906, instituted suit in the district court of Grayson county, Tex., to recover of appellant damages in the sum of $35,000 on account of personal injuries he claims to have received on the 23d day of August, 1906, near Cale, in the Indian Territory. Plaintiff alleged that his injuries were received through the negligence of the appellant, under circumstances as follows: That at the time of his injuries he was a laborer; that on said date he was in the town of Cale, Ind. T.; that his place of abode was a short distance east of appellant's railway track; that a road or thoroughfare ran from the business part of Cale to appellant's track, then through and under a bridge or trestle, which was near appellee's place of abode; that said road or thoroughfare was a public road; that if the same had never been laid out and established as a public road, it was a road which was traveled a great deal by the public in vehicles, on horseback, and on foot; that at the time of his injury appellant knew that the same was a public road, and traveled a great deal by persons in such manner or by the exercise of ordinary care could have known such things; that, at the time appellee was hurt, appellant had hoisted some timbers in and near said trestle and road; that the same were left loose— that is, not fastened to the bridge or trestle, and were sustained by props, guy ropes, and block and tackle; that said timbers, guy ropes, block and tackle, and props were left near and across said road when appellant quit work on the afternoon of the night when appellee was hurt; that by those acts appellant was guilty of gross carelessness and negligence both in hoisting and placing said timbers, etc., and in allowing the same to remain hoisted and stand without being fastened to said trestle: also in placing and allowing said timbers to be in and near said roadway, and in leaving the same in that condition overnight, and in failing and refusing to put any guard across said road or to leave any signal light or watchman to give notice to persons who might be traveling along the same; that the appellant was negligent in permitting such things to be done, and at the time it did, or permitted such things to be done, well knew that the same was dangerous and unsafe and liable to injure and hurt people who would undertake to use, and had a right to use, said public road and thoroughfare, and knew these things in time to have removed the same, or in time to have taken proper steps to guard against danger to travelers along said roadway by means of fencing off said roadway or guarding the same by lights or signals, yet failed to do anything to protect such persons, and acted in utter disregard to the rights of appellee and of the public using said road; that appellee knew nothing of said timber, guy ropes, block and tackle, and props being in, on, near or across said road; that as he was going to his place of abode it was quite dark, and while passing under said bridge or trestle when he arrived at the east end or side thereof his horse, upon which he was riding, ran against said false timbers, guy ropes, etc., got entangled therein, causing said timbers to fall and strike the appellee, knocking him to the ground with great force and violence, and inflicting the injuries complained of; that at the time of the accident appellee was earning as a laborer the sum of $100 per month, and by reason of his injuries he has been incapacitated from doing any kind of labor, and his ability to labor has been greatly diminished and destroyed; that because thereof he has expended for medical services the sum of $250, and for medical bills the sum of $250 more, and will have to incur an expense of large sums for medical attention and for medicines in the future amounting to $500 more, which said expenses already paid and hereafter to be paid were and are reasonable. The appellant answered by general demurrer, special exceptions, general answer, and then by special answer, and alleged, in substance, that appellee's injuries, if any were received, were proximately caused and contributed to by his own negligence and want of ordinary care and by that of his fellow servants; that they resulted from one of the risks assumed by him; that of the defects and causes which produced the same, if any were produced, appellee had full notice in ample time to have avoided the same; that they were caused by his own negligence especially in this: that at the time of the injury he was proceeding along or under or about one of appellant's bridges without exercising care as to where he went, or the dangers he might encounter, in that he was proceeding along or about such places without right or authority, without giving heed to the dangers which might be expected; in that he knew the position of the ropes and timbers, etc., which he claims were the cause of his injury, yet rode or walked in the dark against the same, and in some manner negligently caused his own injuries; that in passing under or about appellant's bridge he took an unfrequented route, and one which he had no right or authority to take; that the same was caused by the inherent viciousness or vice of the animal he was riding, and by the careless manner in which he was proceeding and acting at the time of the accident. The cause was tried by a jury, and resulted in a verdict and judgment for plaintiff for $3,500. The appellant's motion for new trial having been overruled, it perfected an appeal.

Coke, Miller & Coke and Smith & Wall, for appellant. C. B. Randell and J. H. Wood, for appellee.

BOOKHOUT, J. (after stating the facts as above).

Error is assigned to the fourth paragraph of the court's charge, as follows: "The undisputed evidence in this case shows that plaintiff, H. A. Hollan, was camped on or near defendant's right of way in company with other campers who were engaged in doing work on and along defendant's right of way on August 23, 1906; that the town of Cale was something like a mile away from said camp ground and on the opposite side of defendant's railway. If you believe from the evidence that on the occasion in question, namely, the 23d day of August, 1906, there was a roadway that crossed defendant's right of way under a bridge or trestle of defendant's right of way in the vicinity where plaintiff was camped; and if you further believe from the evidence that said roadway, if you find there was such a roadway, had theretofore been commonly and habitually used for travel by the public with the knowledge and acquiescence of the defendant; and if you further believe from the evidence that the defendant had on said day hoisted some timbers on and near said trestle or bridge, and in and near said roadway, if any such roadway you find there was, and you further believe from the evidence that said timbers were sustained by props or guy ropes, and that such props or guy ropes were placed near and across said road, if any there was that crossed under said bridge or trestle, and that they were so left when those doing said work on the afternoon of the said 23d day of August, 1906, ceased their work; and if you further believe from the evidence that after dark on said day plaintiff undertook to ride on horseback from the said town of Cale to his camp; and if you further believe from the evidence that as he was crossing under said bridge or trestle in said roadway, if you find there was such roadway, the horse on which plaintiff was riding became entangled or ran against the said guy rope or prop holding said timbers, and thereby caused a piece of timber to fall from said bridge or trestle and inflict upon plaintiff the injuries complained of in his petition; and if you further believe from the evidence that the defendant, in leaving said timbers and said guy ropes in the manner in which you find from the evidence it did leave the same, was guilty of negligence, and that such negligence, if any, was the proximate cause of plaintiff's injury, if any—you will find for plaintiff and assess his damages as hereinafter directed, unless you should find for defendant under other instructions given you." It is urged against this charge that there was not sufficient evidence to warrant a submission to the jury of the issue as to whether the road involved in this case was a public highway.

The railroad where appellee was injured runs north and south, and is constructed on a dump. At the end of the dump there is a trestle or bridge over a roadway commonly, and has been for many years, used by the public with the knowledge and acquiescence of appellant. The appellee and about 25 or 30 others were camped near the right of way and on the east side thereof. The right of way is fenced up to the end of this bridge or trestle at which point the fence turns in to the end of the dump. The town of Cale is west, or a little north of west, of this trestle or bridge about one mile. The appellee on the 23d of August, 1906, was working for Patton & Gibson, driving a team attached to a wheel scraper. The regular time for quitting work is 6 o'clock p. m. Appellee quit work about a half hour...