St. Louis Southwestern Ry. Co. v. Watts

• Decision Date: 19 November 1919
• Docket Number: (No. 2819.)
• Citation: 216 S.W. 391
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WATTS et al.
• Court: Texas Supreme Court

216 S.W. 391

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

(No. 2819.)

Supreme Court of Texas.

November 19, 1919.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by Mrs. Nannie Watts and others against the St. Louis Southwestern Railway Company of Texas. A judgment for plaintiff was affirmed by the Court of Civil Appeals (173 S. W. 909), and defendant brings error. Judgment of the district court and Court of Civil Appeals reversed, and cause remanded for another trial.

E. B. Perkins, of Dallas, Dan Upthegrove, of St. Louis, Mo., and Glass, Estes, King & Burford, of Texarkana, for plaintiff in error.

Smelser & Vaughan, of Texarkana, R. M. Hubbard, of New Boston, and J. I. Mahaffey and Joe Hughes, both of Texarkana, for defendant in error.

GREENWOOD, J.

This action was brought by defendants in error, who are the widow and children of Jno. C. Watts, against plaintiff in error, St. Louis Southwestern Railway Company of Texas, to recover damages arising from the death of Jno. C. Watts, who was run over by a switch engine of plaintiff in error, while he was lying on its track at Texarkana, where he had been thrown or had fallen, in alighting from a moving train of the Texas & Pacific Railway Company, which he had boarded as an escort of his daughter, who was a passenger.

The questions presented here require us to determine: First, what duty, with respect to the deceased, devolved on plaintiff in error; and, second, whether the defense of contributory negligence was available to plaintiff in error.

The charge of the trial court authorized the jury to find for defendants in error if they found, in substance, that Jno. C. Watts was making a use of the track, which came within plaintiff in error's implied permission, and if they found that the servants of plaintiff in error operating the switch engine, by the exercise of ordinary care, could have discovered the presence of Jno. C. Watts on the track, and could have avoided striking him, and that plaintiff in error's servants failed to exercise such care, and that such failure was negligence, and that the death of Jno. C. Watts was caused by such negligence, and that Jno. C. Watts, on account of injuries previously received, was unable to remove himself from the track or did not realize the danger of remaining thereon.

The trial court refused to instruct the jury to find for plaintiff in error if its employés used such care to discover the presence of Jno. C. Watts on the track and to avoid injuring him, as an ordinarily prudent person would have used under like circumstances at a place not used by licenses; and also refused to submit the defense of contributory negligence, and rendered judgment, on the jury's findings, for defendants in error, which was affirmed by the Court of Civil Appeals.

We do not think that plaintiff in error's duty to the deceased arose from its license to pedestrians to use the footpath in crossing its track. As said by the Supreme Court of Maryland, in Western Md. v. Kehoe, 83 Md. 434, 35 Atl. 90:

"His right to use it as a crossing gave to him no right to use it for a totally different purpose, and his right to use it at all was obviously qualified by an obligation on his part to exercise proper care himself in using it, and hence his right to use it with due care gave him no right to use it recklessly. His right was a right of transit along the highway and across the tracks, and to that extent the duty of the company to use due care not to abridge or invade that right was imperative, and carried with it the obligation to exercise that degree of diligence which might be necessary to avoid an injury to him while he was in the lawful enjoyment or pursuit of that right. This obligation of the company did not go further, or require the company to anticipate, either that the plaintiff would be guilty of negligence in using the highway, or that he would use it, or attempt to use it, for a purpose not within the limits of his admitted right."

In T. & P. Ry. Co. v. Watkins, 88 Tex. 24, 29 S. W. 233, the duty of railway companies, in operating engines and trains, towards persons on their tracks, regardless of the rights of such persons as licensees, was carefully expressed in the following language:

"The true rule is that it is the duty of the servants of the railroad...