Smith v. International & G. N. R. Co.

• Decision Date: 06 January 1904
• Citation: 78 S.W. 556
• Parties: SMITH et al. v. INTERNATIONAL & G. N. R. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

78 S.W. 556

SMITH et al. v. INTERNATIONAL & G. N. R. CO.^*

Court of Civil Appeals of Texas.

January 6, 1904.

Appeal from District Court, Bexar County; J. H. Clark, Judge.

Action by Emma B. Smith and others against the International & Great Northern Railroad Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

P. H. Swearingen, Edw. Dwyer, and W. S. Anderson, for appellants. Hicks & Hicks, for appellee.

FLY, J.

Appellants sought to recover in the district court damages accruing by reason of the death of Joseph Oliver Smith, the husband of Emma B. Smith, and the father of the other two appellants. The trial resulted in a verdict and judgment in favor of appellee.

It appears from the statement of facts that deceased and Emery A. Turner left Taylor, Tex., late in the afternoon of July 7, 1902, to go to Rockdale. They were walking, and went about 1½ miles, when they were stopped by a heavy rain. They went under a shed, and remained until 8 o'clock, when they started back to Taylor, and, the road being very muddy, they went through a gate and walked on the railroad track, which was fenced. After going about 500 yards from the gate, they sat down on the track, and, according to the evidence of Turner, had just seated themselves with their faces towards Taylor when they were struck by a rapidly moving train, and both were badly injured. Smith died from his injuries. Smith, a short while before he died, stated that he and Turner were asleep when they were struck by the train; and Turner stated to one witness, a short time after the accident, that he was cutting a whip handle when he was struck, and to another that he was asleep at the time. On the trial he testified that Smith was about to pull off his shoe, and he was cutting on a pencil, when they were struck. It was a dark night. It was raining very hard, and a strong wind was blowing. The evidence justified the jury in finding that the men were asleep on the track; that part of the track where the accident occurred had been used by people as a pathway. The employés on the train that struck the two men did not discover them on the track, although they kept an outlook.

The first assignment of error is not well taken. The court had charged the jury that it is the duty of those operating railroad trains to exercise ordinary care to avoid injury to persons on the track, and it was unnecessary to repeat it in a special charge. The charge given by the court applied to all, trespassers as well as those lawfully on the tracks, and there was no call for a charge defining trespassers and licensees.

If it be conceded that the railroad track, by public use and acquiescence on the part of the railroad company, had become a thoroughfare for pedestrians, Smith and Turner were trespassers, whether they were sitting down on the track pulling off shoes, cutting on whip handles or pencils, or were asleep; and the railroad company owed them no duty except to use every means to prevent injury to them after discovering their perilous position. If the public had a license to use the track as a highway, no license can be inferred to use the track for sleeping or sitting...