Missouri-Kansas-Texas R. Co. of Texas v. Sanderson

• Citation: 174 S.W.2d 646
• Decision Date: 09 July 1943
• Docket Number: No. 2388.,2388.
• Parties: MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. SANDERSON.
• Court: Texas Court of Appeals

174 S.W.2d 646

MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. SANDERSON.

No. 2388.

Court of Civil Appeals of Texas. Eastland.

July 9, 1943.

Rehearing Denied September 24, 1943.

Appeal from District Court, Callahan County; M. S. Long, Judge.

Suit by L. E. Sanderson against the Missouri-Kansas-Texas Railroad Company of Texas to recover for the death of plaintiff's child killed by the alleged negligent operation of one of defendant's trains. From a judgment for plaintiff, defendant appeals.

Affirmed.

Naman, Howell & Boswell, of Waco, for appellant.

Blanton & Blanton, of Albany, and J. R. Black, of Abilene, for appellee.

FUNDERBURK, Justice.

L. E. Sanderson brought this suit against Missouri-Kansas-Texas Railroad Company of Texas to recover damages for the death of his two-year-old son, allegedly killed by the negligent operation of one of defendant's trains. There were no witnesses to the accident. Plaintiff lived just south of defendant's railroad, where the latter for some distance ran in an east-west course for a considerable distance. A foot path from plaintiff's house to his cow lot and barn crossed the track at a point a little northeast from the residence. The body was found a few feet west of the path and a foot or two from the railroad track on the north side about ten minutes after defendant's eastbound train had passed.

In a jury trial judgment awarding plaintiff recovery of $3,000 was rendered, based upon the verdict which found that defendant's employees in the operation of the train negligently failed to keep a proper lookout and which negligence was a proximate cause of the child's death. The defendant has appealed.

Two points are relied upon for a reversal of the judgment: (1) That there was no evidence that the operatives of the train failed to keep a proper lookout, and (2) that there was no evidence that such failure, if any, to keep a proper lookout was the proximate cause of the death of plaintiff's child.

That the train killed the child is a fact which, if not conclusively established by the evidence, was at least abundantly supported by circumstantial evidence and found by the jury.

No inference is permissible that the child's death was caused by its own negligence. Only two or three months over two years of age, the child, we think, should be presumed in law to have been not chargeable with contributory negligence. Texas & N. O. R. Co. v. Brouillette, 61 Tex.Civ.App. 619, 130 S.W. 886. This fact renders most of the authorities relied upon by appellant inapplicable. If the child had been of such an age that contributory negligence, if it existed, would have been a defense, then the condition of the evidence was such that as a matter of law, no doubt, there was no more support for an inference that the death was proximately caused by defendant's negligent failure, if any, to keep a proper lookout, than that it was proximately caused by negligence of the deceased. That was the principle which ruled the decision in T. & P. R. Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049, and in fact the other cases cited and relied on by the appellant.

This principle was discussed and applied in an opinion by the same great judge who wrote the opinion in the Shoemaker case, in Houston & T. C. R. Co., v. Harris, 103 Tex. 422, 128 S.W. 897, 899, as follows: "The burden being on a plaintiff to establish the defendant's [italics the court's] negligence, it sometimes happens, especially in actions for injuries which resulted in death, that the facts adduced leave the cause of the injury unexplained, or in doubt, so that it may as well be attributed to negligence of the injured person as to that of the defendant."

In such a situation the court went on to say: "The plaintiff should fail, not, as seems to have been assumed in some of the older cases, of which Texas & N. O. R. Co. v. Crowder, 76 Tex. [499], 500, 13 S. W. 381, is a type, because he must exclude the assumption of contributory negligence of the person injured, but because he must prove that of the person sought to be charged as a proximate cause of the injury, which he does not do so long as he leaves his evidence equally consistent with either hypothesis." (Italics ours.)

This court has a number of times recognized and applied this same principle. Metropolitan Casualty Ins. Co. v. Woody, Tex.Civ.App., 80 S.W.2d 771; Texas Pac. Fidelity & Surety Co. v. Hall, Tex.Civ. App., 101 S.W.2d 1050; Paris & M. P. R. Co. v. Russell, Tex.Civ.App., 104 S.W.2d 650; National Aid Life Ass'n v. Driskill, Tex.Civ.App., 138 S.W.2d 238; Shelton Motor Co. v. Higdon, Tex.Civ.App., 140 S.W.2d 905. Application of this principle is ruled out here, insofar as it may involve any possible inference of contributory negligence. It would be applicable, of course, if the condition of the evidence was such as to leave it equally inferable that the child's death was caused from something other than defendant's negligence as that it was caused by such negligence.

In Houston & T. C. R. Co. v. Sympkins, 54 Tex. 615, 38 Am.St.Rep. 632, the Supreme Court sanctioned a proposition to the effect that a railroad company in the operation of its locomotives is under a duty to exercise care to discover the possible presence of trespassers on or dangerously near its tracks. In that case the court said: "We prefer that line of decisions holding railroads bound to exercise their dangerous business with due care to avoid injury to others, as correct in principle and sound in policy, and as protecting even a trespasser who is not guilty of contributory negligence."

This has subsequently been many times re-affirmed by the Supreme Court. Texas & P. R. Co. v. O'Donnell, 58 Tex. 27; Galveston C. R. Co. v. Hewitt, 67 Tex. 473, 3 S.W. 705, 60 Am.St.Rep. 32; Gulf, C. & S. F. R. Co. v. Russell, 125 Tex. 443, 82 S.W.2d 948; St. Louis Southwestern R. Co. v. Watts, 110 Tex. 106, 216 S.W. 391; Texas & P. R. Co. v....