Missouri Pac. Ry. Co. v. Brown

• Decision Date: 22 December 1891
• Citation: 18 S.W. 670
• Parties: MISSOURI PAC. RY. CO. v. BROWN.
• Court: Texas Supreme Court

18 S.W. 670

MISSOURI PAC. RY. CO. v. BROWN.

Supreme Court of Texas.

December 22, 1891.

Commissioners' decision. Section A. Appeal from district court, Rains county, E. W. TERHUNE, Judge.

Action by J. B. Brown against the Missouri Pacific Railway Company to recover damages for the death of plaintiff's son. Plaintiff obtained judgment, and defendant appeals. Reversed.

Whitaker & Bonner, for appellant.

HOBBY, P. J.

J. B. Brown sued the Missouri Pacific Railway Company for the sum of $25,000 damages for killing his son, A. J. Brown, and states his cause of action substantially as follows: That on the 28th day of March, 1887, the said A. J. Brown, then a hale and hearty young man, but temporarily suffering from roseola or measles, was in the town of Emory, Tex., for the purpose of procuring medicine for himself; that afterwards he started home, returning along the railway track, which had for a number of years been used by the parties residing in the neighborhood of where plaintiff and deceased resided as a pathway for foot passengers, with the knowledge and consent of defendant; and that when he had reached a point about three miles from town, he became unconscious by reason of fever, and fell down upon the defendant's track; that while he was in such a state of unconsciousness, a passenger train, operated by defendant's servants and agents, through the carelessness and gross negligence of those in charge of such train, ran over him, and killed him. Defendant denied generally, and pleaded specially that deceased came to his death by reason of his own negligence, and that, if he was unconscious at the time, the same was caused by voluntary drunkenness on his part, and that its agents exercised every possible precaution to prevent injury to the deceased. A trial was had, and a verdict and judgment rendered in favor of plaintiff for the sum of $1,500, from which defendant has appealed. This is the second appeal of this case, the same having been reversed at a former term, and reported in 75 Tex. 267, 12 S. W. Rep. 1117.

The evidence shows that A. J. Brown was run over and killed on the 28th day of March, 1887, by defendant's train, at a point about three miles from the town of Emory in Rains county. That there was no crossing at or near the place. He left home on Sunday evening before he was killed on Monday following, and went to the town above named. He was then complaining of fever, which, when he had it, was shown rendered him at times unconscious. Several witnesses testify to seeing him in town on Monday drinking, and that he stated that he intended to get drunk for the purpose of "breaking the measles out on him." When he was pulled out from under the trucks of the car, a bottle or flask of whisky about two-thirds full was in his pocket, or rather dropped from it. A number of witnesses testified for plaintiff that from the signs at the track indicating where the body was first struck to a point at the curve from which the engineer could have seen him it was 300 yards distant. They measured from objects lying about in the position of the deceased, and observed from the curve. James Blair, witness for defendant, stated that he was engineer of the train which ran over the deceased; that the schedule time of said train was 23 miles per hour; that he was due at Emory at about 6 P. M.; that he remembered the accident; it occurred about three miles south of Emory, shortly after 6 o'clock; that he was running about 23 miles per hour when he first discovered him; that the rules of the company require him to keep a sharp lookout, but especially in going around curves; that he was on the lookout in turning the curve just before he struck deceased; that as he was turning the curve he saw something on the track, which at first he supposed was a pile of cinders, and on the second look he discovered it was a man; that just as soon as he discovered it was a man he put on his air-brakes, reversed his engine, and gave warning by blowing his whistle; that he did everything in his power to stop his train, and did not succeed in stopping it until after he had run over him; that it was about 100 feet from where he first saw him to where deceased was lying; that, running at the rate of speed he was going, if the brakes and everything worked well, he could stop in 150 or 200 feet. When the train stopped, the deceased was under the second coach, just in the rear of the two front trucks. * * * When he first saw deceased he was lying on the track between the rails. It was about 100 feet from the curve to where the man was lying, and that he saw him as he turned out of the curve. The conductor testified that the distance from the curve to the place where deceased was run over was 100 or 150 feet. There were from 3 to 5 iron rails, of 30 feet each in length, between these points. Five witnesses testified for plaintiff that they resided in the neighborhood where A. J. Brown was killed, and that they would walk to town from six to twelve times per annum each, and would always walk on the railroad, and had been using it...