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

• Decision Date: 15 April 1908
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. MALONE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

110 S.W. 958

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

Court of Civil Appeals of Texas.

April 15, 1908.

Rehearing Denied May 20, 1908.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

Action by W. J. Malone against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

T. S. Miller, Perkins & Craddock, and C. E. Mead, for appellant. Looney & Clark and Evans & Elder, for appellee.

RICE, J.

This was a suit by appellee against appellant for the recovery of damages for personal injuries received at the hands of appellant. It is alleged by appellee that on the 11th of August, 1905, while walking on the railway track of appellant between the stations of Royse and Burrow, he was run down and seriously injured by one of the trains of appellant; that appellant's track between said stations approximately runs northeast and southwest, and that about half way between said stations appellant had constructed and was then maintaining a bridge about 200 feet long across a creek, the same varying in height from a few feet at the ends to 15 or 20 feet at the highest points; that appellant's track southwest of said bridge and towards the town of Royse was practically an air line for about 500 or 600 yards, there being a heavy upgrade from said bridge towards Royse, so that a train coming from Royse towards said bridge when near the same would not have to work steam but would run by gravity, making no noise except that made by the wheels and the rumbling of the train; that on the night in question appellee was traveling on foot along said track, and had gotten to said bridge and was about the middle of the same before he heard or in any manner discovered an approaching train from the direction of Royse; that said train was running rapidly, and when first discovered by him was just about going upon the bridge; that the train had run down the grade approaching the bridge noiselessly, the operatives thereon having given no signal or warning of its approach, and that as soon as he discovered said train approaching, realizing his danger, he exerted himself to the utmost to escape, and just as he was about clearing the bridge at the northern end he was run upon and struck by the engine, was thrown from the track down the dump, where he lay in a mangled and unconscious condition until the next morning, unable to rise; that his left leg and left arm were shattered and badly broken; that he was fearfully stunned, shocked, bruised, and wounded; that his left leg and left arm were rendered useless; that his organs and nervous system were seriously and permanently shocked, on account of which he suffered great physical pain and permanent injury; that he had incurred the sum of $500 for medical services, medicine, and nursing; that at the time of said injury and long prior thereto the track of appellant had been used by pedestrians as a footpath, being generally used by the public as such both day and night, with the knowledge of appellant and its agents in charge of trains, using said track without objection upon the part of appellant. He further alleged that prior to his injury while walking on said track he constantly looked and listened in both directions for the approach of any train that might be coming. It was charged that appellant was negligent in that it failed to exercise reasonable and ordinary care in maintaining a lookout in order to warn any one on its track at this point; that the operatives in charge of the engine pulling the train did discover the appellee on appellant's track, and knew of his perilous position in time to have avoided the injury, and failed to check the speed of the train, and failed to give any character of warning to appellee; that said train was running rapidly and at an unusually high rate of speed. Appellant answered by general denial, contributory negligence, and, further, that appellee was either drunk or partially drunk at the time he was struck by the train, was a trespasser upon the track, and was lying down in a drunken condition asleep at the time and place where he knew or ought to have known that the track was being used by appellant's trains. There was a jury trial, and verdict and judgment for appellee in the sum of $4,000, and the defendant has appealed.

Appellant in its first assignment of error complains that the court erred in charging the jury in the fourth paragraph of its charge as follows: "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 portions 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, therefore, you believe from the evidence in this case that the roadbed and bridge of the defendant company between the stations of Royse and Burrow where plaintiff was injured, if you find he was injured, was on the 11th day of August, 1905, and for a number of years immediately prior thereto had been, commonly, usually, and customarily used by pedestrians as a footpath, and you believe that such use by the public of its roadbed and bridge was with the knowledge and consent or acquiescence or permission of defendant company and its train employés, and you believe that on the 11th of August, 1905, the plaintiff attempted and did use the defendant's roadbed and bridge as a footpath in traveling from Royse to Burrow, and you believe that at the bridge which crossed Sabine creek he was run upon and struck by one of defendant's engines and was injured, and you believe that the servants of the defendant operating the train in question failed to exercise ordinary prudence to discover the presence of any person who might be using a portion of the roadbed and bridge in question at the time and place and for the purpose plaintiff was using it, and you believe that by the exercise of such degree of care by defendant's servants operating its engine they would have discovered the plaintiff in time to have avoided injuring him, and you find that the acts of defendant's servants operating its engine was negligence, as herein defined, and that the same was the proximate cause of plaintiff's injury, if any, then and in that event you should find for the plaintiff, unless you find for the defendant under the instructions hereinafter given." The principal objection to this charge under appellant's first proposition under this assignment is that in the absence of a statute defining the acts which constitute negligence the same is a question to be submitted to the jury, and that it was error for the court to charge the jury that any particular act done or omitted is negligence. It will be observed by recurring to said charge that the court did not instruct the jury that it was negligence on the part of appellant to do or not to do any particular act, but left the same for the determination of the jury. It is true that it did in effect instruct the jury that, where a portion of appellant's track had been used for any considerable length of time by pedestrians as a footpath, it was the duty of the company to exercise ordinary care to keep a lookout for persons on its track where people may be expected to be to avoid injuring them. We think this is a correct statement of the law, because it only requires appellant to use ordinary care to discover persons rightfully upon its track.

We do not think there is any merit in the second proposition urged under this assignment to the effect that, while it may have been the duty of appellant under the evidence to have exercised ordinary care in the daytime to discover and prevent injury to pedestrians along its track, this would not necessarily make it the duty of appellant to use ordinary care to discover any one so using its tracks late at night, and that the court erred in its charge which practically so instructed the jury, because, as appellant contends, the evidence did not justify the submission of said charge. While it is true that the evidence showed very much more use of the track by the public in the daytime than at night, still in our judgment this did not require the court in its charge to limit the exercise of ordinary care on the part of appellant to discover and prevent injury to those so traveling only in the daytime. But, irrespective of whether or not there was error in giving said charge, we do not believe that appellant is in a position to complain of any such supposed error, for the reason that at the instance of appellant the court gave the following special charge: "If you believe from the evidence that the plaintiff was a licensee upon the track, then you are charged that the duty to exercise ordinary care was correlative, that is, both the plaintiff and the defendant were under the duty to exercise ordinary care—that of defendant's servants in charge of the engine to exercise ordinary care consistent with their other duties in the operation of the train in keeping a reasonable lookout upon the track, and the plaintiff to use ordinary care to discover and avoid the approaching train. If you believe from the evidence that the plaintiff and the defendant were both guilty of negligence, and that such negligence of both caused the accident, you will find for the defendant." Railway Co. v. Sein, 89 Tex. 63, 33 S. W. 215, 558; Railway Co. v. Weigers, 22 Tex. Civ. App. 344, 54 S. W. 912; City of San Antonio v. Ostrom, 18 Tex. Civ. App. 678, 45 S. W. 961. Under the facts as proven in the case, we do not think it was error to have submitted the charge referred to, irrespective of the special charge given at the...