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

• Citation: 35 S.W. 22
• Parties: ST. LOUIS S. W. RY. CO. OF TEXAS v. BYAS.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 07 March 1896
• Court: Court of Appeals of Texas

35 S.W. 22

ST. LOUIS S. W. RY. CO. OF TEXAS v. BYAS.¹

Court of Civil Appeals of Texas.

March 7, 1896.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Action by J. L. Byas against the St. Louis Southwestern Railway Company of Texas for personal injuries to himself and wife. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

N. H. Lasseter, Sam H. West, and Perkins, Gilbert & Perkins, for appellant. Halsel, Parker & Harris, for appellee.

Conclusions of Fact.

STEPHENS, J.

This appeal is from a judgment for $800 recovered by appellee on account of personal injuries received by himself and wife on appellant's right of way, and near a crossing of the Ft. Worth and Grapevine road, in Tarrant county. They were traveling this road, which was a public county road, in a two-horse wagon, in the direction of the crossing, and when within 20 or 30 feet thereof the horses, becoming frightened at a fire on the opposite side of the railway track, suddenly jumped to one side, overturning the wagon, and thereby producing the injuries complained of. Seven or eight years before the accident appellant constructed its track across this road, which was then a good, level road, 50 or 60 feet wide. In order to enable the traveling public to cross the railway track, appellant threw up an embankment or dump across its right of way, 50 or 60 feet long, on each side of the track, with a gradual ascent to the level thereof, a height of 5 feet Where the wagon went off the dump was 9 or 10 feet wide and 3 or 4 feet high. Appellee was familiar with the road and crossing, and thus describes the accident: "The road I took to Grapevine the day of the accident is the only one I could take without going three or four miles out of my way. At the time I first saw where the fire was, and at the time my horses first appeared to notice the smoke, I had then got my wagon upon the dump, and it was so narrow I could not have turned the wagon round, and had to either stay there or try to drive on across the railway track. There was nothing to do but to stop or try to cross over. The horses jumped off the dump so quick I had no time hardly to think." He testified that the horses he was driving were "good, gentle horses." The verdict is supported by the evidence in establishing the following conclusions of fact: (1) Appellant negligently failed to place and keep the road over its right of way at the place of the accident in a proper condition for the use of the traveling public. (2) This neglect of duty was the proximate cause of the injuries complained of, and the compensation awarded by the verdict was not excessive. (3) Appellee was free from contributory negligence.

Opinion.

Article 4170b of Sayles' Civil Statutes made it the duty of every railroad company in this state "to place and keep that portion of its roadbed and right of way over or across which any public county road may run in proper condition for the use of the traveling public," prescribing penalties, and procedure to enforce them in case of failure to do so. Article 4170 gave every such company the right to construct its railway across any street or highway, but made it its duty to restore the highway to its former state, "or to such state as not to unnecessarily impair its usefulness." The main contention of appellant seems to be that its duty in...