St. Louis S. W. Ry. Co. v. Shiflet

• Decision Date: 05 November 1900
• Citation: 58 S.W. 945
• Parties: ST. LOUIS S. W. RY. CO. v. SHIFLET.
• Court: Texas Supreme Court

58 S.W. 945

ST. LOUIS S. W. RY. CO. v. SHIFLET.

Supreme Court of Texas.

November 5, 1900.

Error to court of civil appeals of Fifth supreme judicial district.

Action by F. A. Shiflet against the St. Louis Southwestern Railway Company. From a judgment for plaintiff, affirmed by the court of civil appeals, defendant brings error. Reversed.

Frost, Neblett & Blanding and S. H. West, for plaintiff in error. Richardson, Watkins & Miller, for defendant in error.

BROWN, J.

The defendant in error instituted this suit to recover damages for the death of his son, Thomas Shiflet, who, he alleged, was killed on the track of the railway company through the negligence of its employés. The evidence tends to show that the accident occurred in the nighttime, in Henderson county, about two miles and a half from a little village known as Brownsboro, and upon the track of the railway company, at a point where it was not fenced. It is charged that the servants of the railway company negligently failed to keep a proper lookout, and thereby failed to discover the deceased, who was upon its track, and, running over him, negligently caused his death. The village of Brownsboro consists of two stores and a drug store, and one or two other houses. Between the village and the place of the accident, and for some distance beyond that, there are a number of houses near to the railroad track, where the farming people of that county reside. Between the rails of the railroad, dirt was thrown in, until it was filled above the ties; the dirt being of a light color. Along the center, and between the rails, this dirt was packed down, as if it had been traveled over by persons on foot, making a path over the dirt. It was proved by those who lived near by in the neighborhood that for a great many years it had been the habit of the people who lived near to the railroad, when they went to the village on foot, to walk to and from it along the railroad track, and that persons were seen almost every day traveling upon the railroad in this way. It was not shown that any objection had ever been made by the railroad company or any of its employés. No person had been seen to walk upon the track in the nighttime. From the place where the accident occurred, westward, the track was straight for 150 or 250 yards, and the grade rose to the east; that is, towards the place of the accident. It was testified to that an engineer with a headlight burning could have seen a boy lying upon the track at the distance of 150 to 200 feet. The engineer and fireman testified that they did not see the boys, and did not know that any one was hurt until they arrived at Tyler, and found upon the pilot blood, pieces of clothing, and human flesh. At the point indicated upon the defendant's track, and between the rails, was found a pool of blood, where there had been such a quantity of it that it ran down the embankment for several feet; and a short distance from it another pool of blood, of considerable quantity. The blood was spattered on the west side of the ties, and the fragments of clothing, bones, and flesh were found at a distance of 20 or 25 feet from where the pool of blood was; but the remains were so mangled as to be not recognized, except from the clothing. The train upon which the blood was discovered passed that point about 11 o'clock at night. Defendant in error, F. A. Shiflet, lived about two miles and a half north from Brownsboro, and about the same distance from the railroad track. On Sunday morning of the same day that the boy was killed at night, Thomas Shiflet, without permission of his father, left home to go down near to the railroad track, to the house of a neighbor. He went to that house, and there he was joined by two other boys; and the three, at about 11 o'clock in the day, started to go back to Mr. Shiflet's. The next time they were seen was at a point about 10 miles west of Brownsboro, on the railroad, at which point the three boys were together, walking along the railroad track, and going west, about 3 o'clock in the afternoon. At the same point, late in the afternoon, just before night, the same boys returned, going eastward, walking along the defendant's track. They were never seen again, living. Their remains were found the next morning, as above stated. Upon the intelligence of the boy Thomas Shiflet, the following testimony was given. The defendant in error testified, in substance, that the boy was just a common country boy, of average intelligence, and it looked like he ought to have intelligence enough to know that, if a railroad train passed over him, it would kill him. He was large enough to work around the place some, and had just commenced to do his first plowing. Had been to school some. Could read a little, but could not write. The boy had been to Brownsboro a few times, sometimes with the father, and a time or two he went alone, to sell eggs and butter for his mother; but he had never been on a train, or close to one. Witness did not believe that the boy had discretion to appreciate the danger that he might go to sleep. Did not have discretion enough to go alone to Kaufman or Greenville. W. P. Hollman testified that he knew the boy Thomas Shiflet. Did not think that he had sufficient intelligence to appreciate the fact that, if he sat down on the railroad, he was liable to drop asleep and get run over. Did not think he had sufficient intelligence to stop and think over the fact, and reason to himself that it would be dangerous for him to sit down, for fear he might go to sleep. Witness had six boys of his own, and he could hardly keep them awake long enough to get them to bed. He based his opinion on his knowledge of boys generally, and said that, when a boy is tired and lies down, he does not believe he will go to sleep, but he will. J. S. Hollman had known the deceased since he was six months old. He had seen him in Brownsboro, and the boy had seen a train. The witness had heard the boy talk about the train. He was a boy of average intelligence, was not weak-minded, and was able to work intelligently. The petition presented the case upon the ground that the deceased was upon the...