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

• Decision Date: 23 January 1904
• Citation: Missouri, K. & T. Ry. Co. of Texas v. Hammer, 78 S.W. 708, 9 Tex. Ct. Rep. 298, 34 Tex. Civ. App. 354 (Tex. App. 1904)
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. HAMMER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

78 S.W. 708

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

Court of Civil Appeals of Texas.

January 23, 1904.

Appeal from District Court, Ellis County; J. E. Dillard, Judge.

Action by J. A. Hammer, as next friend, etc., against the Missouri, Kansas & Texas Railway Company of Texas.From a judgment in favor of plaintiff, defendant appeals.Affirmed.

T. S. Miller and G. C. Groce, for appellant.Finley & Knight and Love, Gammon & Wimbish, for appellee.

RAINEY, C. J.

J. A. Hammer brought this suit as next friend for the use and benefit of his child, Mary Hammer, against appellant, to recover damages on account of personal injuries inflicted upon her through the negligence of appellant's servants.The company answered by general denial.A trial resulted in favor of plaintiff.

The evidence shows that plaintiff, with his family, lives on his farm, situated upon the line of appellant's railway; the residence being 75 or 100 yards from the track, and the yard extending to the right of way, and within 60 feet of the track.The right of way was inclosed by a wire fence; the first wire being about 6 inches from the ground, the next being 10 or 12 inches, and so on.Opposite the house there was a private crossing, and a path leading from the yard gate to said crossing.Along the right of way, it was grown up in weeds, thistles, etc.Between the rails south there was a smooth path or walkway.At this point the track runs north and south, and is practically straight and level, without obstruction to view for a considerable distance both ways.On May 31, 1900, J. A. Hammer and wife went to a neighboring town, Waxahachie; leaving at home their seven children, ranging in ages from 17 years down to about 20 months.The youngest, Mary, being left in charge of her older sister and brothers, strayed upon the track to a point 75 or 100 yards south of the crossing, where she was struck and injured by an engine pulling freight cars, which was being operated by appellant's servants.Prior to this the engineer had seen the children playing on the right of way near the crossing, and saw that they had a little play railroad constructed there.There is no positive evidence as to how long the child had been upon the track when struck, nor where she first went upon it; but it is sufficient to warrant the conclusion that, if the operatives had used ordinary care in keeping a lookout, the child could have been seen by them in time to have prevented the injury.The evidence is also sufficient to warrant the amount of damages assessed by the verdict.

On the issue as to the duty imposed upon railroads, the court charged the jury as follows: "It is the duty of the agents, servants, and employés of a railroad company engaged in running and operating its trains to use ordinary care to discover infants of tender years who may be on or near the track in front of the train, by keeping a reasonable lookout for that purpose; the degree of such care being such as a person of ordinary prudence would commonly exercise under like circumstances, and varying as the known probabilities of danger may vary along different portions of the road on which said train is being run."It is urged that this charge is erroneous, in that an affirmative duty of keeping a lookout was placed upon appellant, to prevent injuring the child; the contention being that, the child being a trespasser, no duty arose in relation to it unless its danger was known or should have been anticipated.The doctrine that a railroad owes no duty to one wrongfully on its track, except to refrain from wanton injury to him, has been expressly repudiated by the Supreme Court of this state—not only so, but it has held that it is the duty of carriers to keep a lookout for any one who may be on the track.Ry. v. Sympkins, 54 Tex. 516, 38 Am. Rep. 632;Ry. v. Hewitt, 67 Tex. 479, 3 S. W. 705, 60 Am. Rep. 32;Ry. v. Watkins, 88 Tex. 20, 29 S. W. 232.In the Watkins Case, cited, the court uses this language: "The true rule is that it is the duty of the servants of the railway company operating its trains to use reasonable care and caution to discover persons on its track, and a failure to use such care and caution is negligence on the part of such company, for which it is liable in damages for an injury resulting from such negligence, unless such liability is defeated by the contributory negligence of the person injured or of the person seeking to recover for such injury, and the circumstances under which the party went upon the track are merely evidence upon the issue of contributory negligence.If such circumstances show that the party injured was a wrongdoer or trespasser at the time of the injury, the issue of contributory negligence is, as a general rule, established as a matter of law, but not so in all cases."But it is contended that this language was used in a case where the facts show that the accident happened at a point where the presence of a person should have been anticipated, and that it should only apply to such a state of facts.We think, however, that in its use the able judge intended it to have a general application to the operation of trains.The proposition was there made that, as the injured party was a trespasser or a mere licensee, the railroad owed her no duty to keep a lookout to discover her, or give her any notice of the approach of the engine.In discussing this proposition, the court quoted from the Sympkins and Hewitt Cases, supra, to the effect that a lookout must be kept, then announced the rule above stated, and then added: "It results from the above that it was the duty of the railroad to use ordinary or reasonable care to discover and warn defendant in error, whether she be considered a trespasser or a mere licensee, and a failure to use such care was negligence," etc.This, to our mind, shows that the court had in mind the distinction as to the duty owing a trespasser, and one not such, and indicates that the measure of duty is ordinary care to discover a person on the track.That the railroad company must use ordinary care to prevent injury to any infant of tender years on the track, we think, is well settled.We can conceive no way that a discovery could be made, except by keeping a lookout.

It is also urged that neither the common law nor statute imposes such a duty, and, in the absence of such requirement, it was error to so charge, but it was a question for the jury....