St. Louis Southwestern Ry. Co. of Texas v. Shiflet

• Decision Date: 12 December 1904
• Citation: 83 S.W. 677
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. SHIFLET et al.
• Court: Texas Supreme Court

83 S.W. 677

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. SHIFLET et al.

Supreme Court of Texas.

December 12, 1904.

Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.

Action by F. A. Shiflet and another against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals. On certified questions.

See 81 S. W. 524.

E. B. Perkins, Frost & Neblett, and Lewis Carpenter, for appellant. Richardson, Watkins & Miller, for appellees.

GAINES, C. J.

This is a certified question. The statement and questions are as follows:

"(1) Appellees sued the railway company, appellant, to recover damages alleged to have resulted to them from the death of their minor son, Thomas, through the alleged negligence of appellant's employés. Defendant pleaded contributory negligence of Thomas Shiflet, the minor son. Judgment was rendered for appellees. The case has been tried four times in the district court. This is the third time it has been before the Courts of Civil Appeals, and once passed upon by the Supreme Court. 94 Tex. 131, 58 S. W. 945.

"Thomas Shiflet was killed at night by being run over by one of appellant's trains at a point on the track where it was commonly used by pedestrians. Except as to some additional evidence showing that the track was used by pedestrians at night, the facts are the same as those passed upon by the Supreme Court in Ry. v. Shiflet, 94 Tex. 131, 58 S. W. 945, and reference is here made to said case, where the facts are fully stated, and same is made a part of this statement. At a former day of this term of court we reversed and remanded the cause, but it is still pending on rehearing.

"One of the grounds for reversal was that the court erred in submitting to the jury the question whether or not Thomas Shiflet was of sufficient intelligence and discretion to understand and appreciate the danger of being on the railroad track at the time and place of the injury. This holding was based on the decision of the Supreme Court in this case on a former appeal. 94 Tex. 131, 58 S. W. 945. The appellees, on rehearing, contend that this `court erred in construing the law of this case as set out in the opinion of the Supreme Court of this state (volume 94, p. 131), in this: The law of the case as therein set out is expressly based on the assumption by that court that the deceased was not of right upon the track, and was not there as a licensee, at the time of his death, but was in the position of a trespasser from the first entry upon the track, whereas the trial court, in his charge on the last trial of this case, refused to submit any question for the determination of the jury, or to be in any way considered by them, unless they first found that the deceased was of right, and not a trespasser, upon the defendant's railway at place he was killed; the Supreme Court in said opinion having held that the original petition presented a sufficient allegation upon that issue, and that it was an affirmable proposition, had the same been submitted on trial at that time to the jury.' The court charged the jury as follows: * * * `Ordinarily every person who goes upon or remains upon a railroad track, except at a public crossing, is a trespasser, and as such assumes the risk of being injured or killed, and neither he nor any other person can recover damages therefor. This general rule is subject to the following qualification: If the testimony shows that the part of the track at the place where Thomas Shiflet was run over had been habitually used by pedestrians as a common pathway, and had been so used for such a length of time that the employés of the defendant company knew or ought to have known of such common use for foot travelers, then it became the duty of the defendant company's employés to use such care and keep such a lookout for persons walking along such pathway as a person of ordinary prudence would have used, having in view the increased danger to a person traveling along said pathway by reason of the common use of the same by foot travelers, and having in view the time of day or night when the presence of travelers might be anticipated. A failure to use such degree of care would be negligence. If you believe that under the circumstances of this case, and the foregoing part of this charge, Thos. Shiflet was not guilty of contributory negligence in being upon the railroad track at the time and place where he was run over, and that he was on the pathway in the...