Rozwadosfskie v. International & G. N. Ry. Co.

• Decision Date: 23 November 1892
• Citation: 20 S.W. 872
• Court: Texas Court of Appeals
• Parties: ROZWADOSFSKIE v. INTERNATIONAL & G. N. RY. CO.

20 S.W. 872

ROZWADOSFSKIE v. INTERNATIONAL & G. N. RY. CO.

Court of Civil Appeals of Texas.

November 23, 1892.

Appeal from district court, Hays county.

Suit by Pauline Rozwadosfskie against the International & Great Northern Railway Company to recover for the alleged negligent killing of her husband by defendant. Judgment for defendant. Plaintiff appeals. Affirmed.

Gustave Cook, Ford & Neighbors, J. J. Butts, and J. M. Moore, for appellant. W. O. Hutcheson and T. H. Franklin, for appellee.

COLLARD, J.

This is a suit by the appellant, plaintiff below, for herself, as widow, and the minor children of herself and Frank Rozwadosfskie, for damages against the appellee, defendant below, resulting from the alleged negligent killing of Frank Rozwadosfskie by defendant by running its freight train over him at San Marcos, Tex., on the 9th day of December, 1888. The court below instructed the jury to find for the defendant, which they did, and judgment was so rendered, from which the plaintiff has appealed.

The facts of the case are as follows: Deceased was about 40 years old, a carpenter by trade, earning about $2.25 per day, a strong, robust man, and in good health. He lived with his family at San Marcos, Tex., about 230 or 235 yards from defendant's depot. He was working at his trade at Kyle, through which defendant's railroad passed, about eight miles northeast of San Marcos. For several nights prior to the 9th of December, 1888, he was expected home as a passenger on defendant's train. He sometimes drank to excess after his week's work, when he was paid off, and his wife was expecting him home in an intoxicated condition. She sent her two boys, Martin and Frank, aged, respectively, 13 and 10 years, to meet him at the train, and to conduct him home in case he was drunk. The boys had frequently met him at the train, and had brought him home, and on one occasion he was drunk, — "not very," he never having refused to go with them. The night of December the 9th was cold, and the two boys were at the depot, in the waiting room, where there was a fire, expecting their father on the train due later in the night. The station agent asked them what they were there for. Frank, the older boy, replied that they were there waiting for their father, who was coming on the train from Kyle. He told them that they had been there two or three nights, waiting for him, and that he had not come, and was not coming, and that, if they did not leave the depot, and not come around there any more, he would have them arrested and put in jail. His manner and language were rough, and so frightened them that one of them was crying. They were not misbehaving. One of them had been seen about the depot, swinging on the steps of the cars, and jumping off while the cars were in motion. They left, and, when they got outside, a policeman told them to run on home, and come back when they heard the whistle blow. This was 9 or 10 o'clock P. M. They went home, and went to sleep, did not hear the whistle, and were not there when their father arrived on the train, between 10 and 11 o'clock, on the same night, the 9th of December, 1888. Deceased boarded the train at Kyle about 10 o'clock that night. Witness Johnson went with him to the depot, and carried his baggage, and assisted him on the train. He was drunk, but not imbecile. He knew what he was doing, and where he was going; gave Johnson 25 cents, the exact amount, to purchase for him a ticket to San Marcos. He staggered in walking several times, and would have fallen if Johnson had not assisted him. He had a bottle of whisky. In getting on the train he came near falling, and would have done so if Johnson had not caught him. The conductor was looking at him at the time. The steps from the ground were high, and there was no stool, and he had to catch hold of the step rail and pull himself up. The conductor on the train knew his drunken condition. He was helped onto the first seat after entering the car. When the train arrived at San Marcos, deceased threw his bundle of clothes, or something of the kind, out before him on the platform, and then got out himself, and leaned up against the car, when some gentlemen took hold of him, pulled him away, and told him to "look out." After the train left, he was seen in the depot at the ticket window, talking to Mr. Collins, the agent, about his baggage, and said he would leave it there till morning. Witness Meredith, speaking of this, says further: "I then came out of the depot house, and started up to town, and when I was about Prince's lunch stand, deceased called me, and came up behind me, and we then walked on together up to Brown & Lindsay's livery stable, 200 yards from the depot. Deceased caught hold of Mr. Summerrow, who was with me, and said, `You are not afraid of me, are you?' to which Mr. Summerrow replied, `No, I am not afraid of you.' Mr. Summerrow pulled away from him, and we walked on together. Deceased followed us some 10 or 15 steps, and said to us that we could get all the drink we wanted; that the houses were all open here yet. Deceased then turned back towards the depot house, and I and Mr. Summerrow came on up to town. That was the last I saw of the deceased till the 10th December, 1888, I saw him at his house in San Marcos, dead. He was a stranger to me." The statements quoted of this witness are true, and are corroborated by Mr. Summerrow, except that he did not hear the conversation with the agent. The depot is 700 or 800 feet from the home of deceased, 100 or 200 feet further than the livery stable near which Meredith last saw him. The platform extends along the track east and west of the depot building, is about 2½ or 3 feet higher than the track, and about 3 feet from the track. Dr. Atkinson was called to deceased after he was hurt, and found him on the west end of the plat form, about 70 feet from the depot at San Marcos. He testified, and we so find the facts: "His left arm was mangled, he had three scalp wounds, and his left leg was seriously injured. He died next morning from the injuries. He had been run over by the wheels of the cars, as was evident from the condition of the wounds. When I arrived at the depot the hind wheels of the caboose of the freight train were standing about 35 feet from the body of the deceased. Blood was found on the car next to the tender, but none on the wheels of the engine or tender. There was blood between the rail and the platform. He was strong, robust, and healthy. It was evident that the wheels of one car had run over him. Deceased was evidently under the influence of liquor, and had lain down and gone to sleep." The evidence does not show any further particulars of the...