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

• Court: Texas Court of Appeals
• Writing for the Court: Streetman
• Citation: St. Louis S. W. Ry. Co. of Texas v. Matthews, 79 S.W. 71, 9 Tex. Ct. Rep. 5 (Tex. App. 1904)
• Decision Date: 20 January 1904
• Parties: ST. LOUIS S. W. RY. CO. OF TEXAS v. MATTHEWS et al.<SMALL><SUP>*</SUP></SMALL>

Page 71

79 S.W. 71

ST. LOUIS S. W. RY. CO. OF TEXAS v. MATTHEWS et al.^*

Court of Civil Appeals of Texas.

January 20, 1904.

Appeal from District Court, McLennan County; Ben G. Kendall, Special Judge.

Action by Sarah E. Matthews and others against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiffs, defendant appeals. Affirmed.

E. B. Perkins and Clark & Bolinger, for appellant. A. C. Prendergast, for appellees.

STREETMAN, J.

Appellees recovered judgment against appellant on account of the death of their father, who was run over and killed by an engine on appellant's track in the city of Waco, on the east side of the Brazos river.

The first assignment of error is to the effect that the judgment should have been for the defendant, because the undisputed evidence showed that J. M. Matthews, the deceased, was killed on account of his own contributory negligence. The evidence showed that the accident occurred between 8 and 9 o'clock at night. The tracks of four different railroads converge and cross at a point which is claimed by appellees to have been in a public street of the city of Waco. The Houston & Texas Central Railroad runs approximately north and south at this point. The track of the Missouri, Kansas & Texas Railway Company runs east and west, and crosses the Houston & Texas Central track about at a right angle. The track of the appellant also runs east and west, and crosses the track of the Houston & Texas Central Railroad some 8 or 10 feet north of the Missouri, Kansas & Texas track. The track of the International & Great Northern Railroad approaches this point from a southeasterly direction, crosses the Missouri, Kansas & Texas track a short distance east of the Houston & Texas Central crossing, and there unites with the track of appellant, and crosses the Houston & Texas Central track upon appellant's track. It appears that, both east and west of the place where appellant's track crosses the Houston & Texas Central Road, it curves considerably to the north. It is also shown that east of the Houston & Texas Central crossing there is a fence so constructed with reference to appellant's track as to intercept the view of a train approaching from the east until within a short distance of said Houston & Texas Central crossing. The deceased appears to have been struck and killed some 12 or 15 feet west of the Houston & Texas Central crossing. The train which struck him consisted of a switch engine pulling a freight train consisting of a number of cars. The engine was backing, but was in front of the train. The tender was in such a position and so constructed as to prevent the engineer and fireman from seeing down the track in the direction in which they were going. There were two employés on the footboard of the engine in front. There is a conflict of testimony as to whether there was a headlight burning in front of said tender, so as to be seen by a person in front of said train. It was alleged by appellees, and there is evidence tending to show, that the train was being run at an excessive rate of speed, and that it failed to stop, as provided by law, for the railroad crossing, or to give the statutory signals for said crossing. The evidence of the plaintiffs tends to show that the trains of the International & Great Northern Railroad were in the habit of stopping at this crossing and receiving and discharging passengers, and that the purpose of the deceased in going to that place was to board the International & Great Northern train when it stopped on the west side of the Houston & Texas Central crossing, and become a passenger on said train. A witness for the plaintiffs testified that the deceased, just before the accident, came from the direction of the Missouri, Kansas & Texas track, traveling north towards appellant's track, and some few feet west of the Houston & Texas Central crossing; that a train was at that time just going east on the Missouri, Kansas & Texas track; that a switch engine was also on a spur track of the Missouri, Kansas & Texas, a short distance south of the deceased, and rather behind him, just pulling out onto the main track of the Missouri, Kansas & Texas. It was also shown that there was just in front of the deceased, and not very far from him, an engine on the track of the Houston & Texas Central, burning a bright headlight, which shone towards the deceased. The evidence tends to show that while in this situation, and just as deceased stepped upon the track of the appellant, the appellant's train came from the east, running at a high rate of speed, and, having failed to stop for said crossing, and having failed to give the statutory signals for said crossing, struck and killed the deceased a few feet west of said crossing. The evidence, it is true, is conflicting upon nearly every one of these issues, but there is abundant evidence in the record to sustain the theory above stated. There is also much evidence in the record which tends strongly to show that the deceased was intoxicated at the time he was killed. On the contrary, however, there is positive evidence that the deceased was sober at the time of the accident, or a very few minutes before. Under this evidence, we are unable to say that the verdict of the jury, finding the deceased free from contributory negligence, is unwarranted by the evidence. There was evidence tending to show that the place where the accident occurred was in a public street of the city of Waco; and, whether this was true or not, there was evidence to show that the place was one which was commonly used by the public as a footpath. Under the evidence, it is clear that the deceased was not a trespasser, and was not guilty of contributory negligence, by reason of his presence at said place. This being true, we think it is further clear that his failure to...