St. Louis S. W. Ry. Co. of Texas v. Bishop

• Decision Date: 28 October 1896
• Citation: 37 S.W. 764
• Parties: ST. LOUIS S. W. RY. CO. OF TEXAS v. BISHOP et al.
• Court: Texas Court of Appeals

37 S.W. 764

ST. LOUIS S. W. RY. CO. OF TEXAS v. BISHOP et al.

Court of Civil Appeals of Texas.

October 28, 1896.

Appeal from district court, Collin county; J. E. Dillard, Judge.

Action by Vianna Bishop and others against the St. Louis Southwestern Railway Company. There was a judgment for certain plaintiffs, and defendant appeals. Original opinion withdrawn, and judgment reversed on rehearing.

Sam H. West and Dillard & Muse, for appellant. M. H. Garnett and R. T. Shilton, for appellees.

On Rehearing.

NEILL, J.

This suit was brought by seven daughters (three of whom were married, and the other four minors), an adult son, and two grandchildren of Wiley Reisden, to recover damages for injuries resulting in his death, alleged to have been caused by appellant's servants while operating one of its trains over its roads. The petition alleged that when the accident occurred there was a pathway, usually traveled by footmen, running along and continuing upon appellant's roadbed from a point some distance east of where a whistling board was erected by appellant, which stood about 300 yards east of a crossing, to or about the town of Renner, about 1 mile west of where the pathway enters on the railroad track; that while Reisden was walking along the footway, in full view of, and could at all times have been seen by, appellant's servants in charge of and operating the train, had they exercised proper diligence, and kept a sufficient and necessary lookout, he was, without any notice or signal from the persons in charge of appellant's train, run over and killed by the engine; that, while walking along the path, he was, and had been for the distance of a mile, in full view of the persons operating the train, which was running in the same direction he was going; that the employés operating the train negligently failed to either ring the bell or blow the whistle as they approached the crossing, or give a signal or warning of any kind; that they were guilty of negligence in not keeping a lookout for persons on the track, and in running the train at a reckless, dangerous, and unusual rate of speed as it approached said crossing. The appellant answered by general and special exceptions, a general denial, and, specially, that deceased negligently went upon its track, and was a trespasser thereon; that appellant's servants saw him on the track, and relied upon the presumption that he would leave it before any injury could occur; and that, when they discovered that he did not intend to do so, they used all reasonable and proper care to prevent the injury. The case was tried before a jury, and, as the charge of the court precluded the grandchildren from recovering, a verdict was returned in favor of the other plaintiffs for $1,500, to be divided equally among them, upon which the judgment was entered up from which this appeal was prosecuted.

The evidence shows that Wiley Reisden left the house of his daughter Vianna Bishop, not more than an hour before he was killed, to go to Mr. Armstrong's, who lived about a mile from Vianna's residence. On cross-examination the appellant proposed to prove by Frank Bishop, Vianna's husband, that he heard his wife say, after the accident occurred, that, just before her father left her house to go to Armstrong's, she cautioned him about walking on the railway track, and advised him that a passenger train would soon pass along appellant's track over which Wiley then contemplated traveling, and that she told witness that she requested her father not to walk along the track in going from her residence to Armstrong's; to the introduction of which plaintiffs objected because—First, the same was irrelevant and immaterial; and, second, such evidence was hearsay, and as to statements made before the accident. These objections were sustained, and the testimony offered not allowed to be introduced. The ruling of the court in excluding the testimony is assigned by appellant as error. The testimony was, as to all the plaintiffs except Vianna, hearsay; but as to her it was an admission against her interest, in that it showed, from what she stated to her father, he knew when he went on the track that the train which collided with him would soon pass over it.

Certain witnesses for plaintiffs testified that the train was running at a speed of about 18 or 25 miles an hour at the time Reisden was killed. This testimony was objected to by appellant "for the reason that, under the circumstances of this case, it was immaterial and irrelevant." The objection being overruled, a bill of exceptions was reserved to the ruling, and it is here assigned as error. Under the circumstances of the case, we think the testimony was material, in that it tended, in connection with...