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

• Decision Date: 02 January 1897
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. JOHNSON et al.
• Court: Texas Court of Appeals

39 S.W. 323

MISSOURI, K. & T. RY. CO. OF TEXAS v. JOHNSON et al.

Court of Civil Appeals of Texas.

January 2, 1897.

Appeal from Dallas county court; T. F. Nash, Judge.

Action by L. W. Johnson and another against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiffs, and defendant appeals. Reversed.

Marshall Thomas, for appellant.

LIGHTFOOT, C. J.

We adopt the statement of appellant, as follows: This suit was brought by L. W. Johnson and L. F. McShan on October 2, 1895, against the Missouri, Kansas & Texas Railway Company of Texas, in the justice court of Dallas county, precinct No. 1, to recover the sum of $150, the alleged value of one cow killed by defendant company on its track in Dallas county, Tex., July 11, 1895 ($50), and one mule, killed by defendant company on its track in Dallas county, on September 28, 1895 ($100). Defendant railway company answered by a general denial, that its track and right of way was fenced when the injuries occurred, contributory negligence, and that plaintiffs loosened the wires of right of way fence. On November 7, 1895, the cause was tried before the justice of the peace, and judgment was rendered in favor of the plaintiffs for the sum of $150. On November 15, 1895, defendant appealed to the county court, and on February 19, 1896, the cause was tried before the court without a jury, and judgment was rendered in favor of the plaintiffs for the sum of $150. On February 26, 1896, the court, upon request of appellant, filed conclusions of law and fact, which were duly excepted to, and the exceptions noted on the docket. The conclusions of fact found by the court below are as follows: "On July 11, 1895, a cow, the property of the plaintiffs, of the value of fifty dollars, entered upon the right of way of the defendant through a defective right of way fence, which had been defective for a sufficient length of time to charge defendant with knowledge of its condition, and the cow was struck and killed by defendant's train. On the night of September 28, 1895, one mule, of the value of one hundred dollars, the property of the plaintiffs, was killed by the defendant's train. The evidence does not show how the mule gained access to the right of way, but it does show that the mule could have entered upon the right of way either through a partially open gate in the right of way fence kept up and maintained for the convenience of the plaintiffs, or through a defective right of way fence, which had...