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

• Decision Date: 27 January 1909
• Citation: 115 S.W. 1158
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. MALONE.
• Court: Texas Supreme Court

115 S.W. 1158

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

Supreme Court of Texas.

January 27, 1909.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by W. J. Malone against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff was affirmed by the Court of Civil Appeals (110 S. W. 958), and defendant brings error. Reversed and rendered.

Coke, Miller & Coke and Jno. T. Craddock, for plaintiff in error. B. Q. Evans and Looney & Clark, for defendant in error.

BROWN, J.

On the 11th day of August, 1905, W. J. Malone took passage at Dallas on the Missouri, Kansas & Texas Railway for Royse, a station on that road. He desired to go to a station called Burrow, a few miles from Royse, but the conductor refused to stop the train at that place and he got off at Royse. It was about 10 o'clock when he reached Royse, and, with a grip in his hand and a coat on his arm, he started to walk on the railroad track to Burrow. He says that he walked slowly and rested frequently. At some time in the night near to 12 o'clock he reached a bridge over Sabine creek. The bridge was about 200 feet long, and was at some points as high as 12 feet above the bed of the creek. When Malone reached the bridge, he stopped and listened for a train, and looked both ways to see if a train was coming, and then started across the bridge. When he had gotten near to the farther end of it, he heard a noise, and, looking back, saw a train coming upon the other end of the bridge. He started to run with a view to escape from the train, but just as he passed off the bridge, the locomotive struck him, knocking him off the track, broke his leg in two places, and injured his arm badly, inflicting upon him serious injuries. Malone lay there until next morning, when the section foreman came along and picked him up, and carried him to some place for attention. The train was running at a speed of about 30 miles per hour. The fireman and engineer both testified that they did not see Malone upon the bridge nor after he was injured. Counsel for plaintiff in error admit that the evidence is sufficient to impose upon the railroad company the duty to keep a lookout for persons at that place in the daytime. Therefore we will not make any statement of the evidence with reference to the use of the track during the day. The evidence as to the use of the railroad track at night by persons walking upon it is very meager. Comparatively few persons were shown to have walked upon the track at night. There is no evidence in the record to show that any officer or agent of the company knew of the use of the track at night. The railroad company answered by general denial, by plea of contributory negligence, and specially pleaded that the appellee was either drunk, or partially drunk, and lying asleep on the track, when he was struck by the train; that he was a trespasser upon the track, lying down in a drunken condition, asleep at the time. At a trial before a jury the plaintiff recovered $4,000, for which the trial court entered judgment and the Court of Civil Appeals affirmed that judgment.

The judge of the trial court gave to the jury this charge: "When with the knowledge and consent or acquiescence or permission of a railway company any portion of its roadbed, bridges, or trestles have been, for any considerable length of time, commonly, usually, and customarily used by pedestrians as a footpath, it is the duty of such company, by its agents and servants engaged in the operation of its engines and trains over such portion of its roadbed, bridges, and trestles thus used, to exercise ordinary prudence to keep a lookout for persons on its track where people may be expected to be to avoid injuring them. If,...