St. Louis, A. & T. Ry. Co. v. Hanks

• Decision Date: 28 October 1890
• Citation: 14 S.W. 691
• Parties: ST. LOUIS, A. & T. RY. CO. v. HANKS.
• Court: Texas Supreme Court

14 S.W. 691

ST. LOUIS, A. & T. RY. CO. v. HANKS.

Supreme Court of Texas.

October 28, 1890.

Commissioners' decision. Appeal from Henderson county; F. A. WILLIAMS, Judge.

Clark, Dyer & Bolinger, for appellant. W. R. Dickerson and Faulk & Faulk, for appellee.

HOBBY, J.

This suit was brought by appellee, J. P. Hanks, against the appellant, in the justice's court of precinct No. 1, of Henderson county, for the sum of $200, for the negligent and willful killing of his dog. Judgment was rendered by default in said court on October 31, 1887, against the appellant for the sum of $200. From this judgment the railway company appealed to the district court of the county. Written pleadings were filed by the appellant, but they are not necessary to be set forth, as no question grows out of them. A trial was had in the district court, and a verdict and judgment was rendered in favor of Hanks for "$100 damages, for the negligent killing of his dog." Appellee's (Hank's) testimony was in substance that on Sunday morning he, with two other parties and two dogs, walked down on the track of defendant about a half mile east of Athens. They walked down a path made on said railway by footmen. After they had turned around, and were coming back, they looked east, and saw a freight train coming around the curve, and plaintiff picked up his small dog and carried him off the track, but the dog that got killed ran west across a bridge, and he did not have time to get him off. Threw some rocks at him. The dog had never seen a train before, and stopped on the track awhile to look at it; then, being afraid of it, ran. The train was within 30 or 40 yards of him when he started. He ran his best down the track ahead of the train, about 300 or 400 yards, and the engine caught and killed him. The train seemed to be running at a fair speed until the dog ran in front of it. It then seemed to increase the speed, although it was up grade. The engineer was looking out at the dog all the time until it was killed. He did not try to stop or slow up the train, nor did he blow the whistle, ring the bell, or do anything to frighten the dog. The plaintiff testified that as the engineer passed him, he was within 5 or 6 feet of the train, and heard him say: "We'll catch him," or "we'll get him," or something of that kind. This testimony was substantially corroborated by other evidence. There was testimony to the effect that the dog was a valuable shepherd dog, worth $200 or $300. The engineer denied making the statement attributed to him by plaintiff. The engineer testified that he had a very long freight train that day from Tyler, west. It was so heavy that he had to cut the train in two at a hill about three miles east of Athens, and take one-half to Athens and then go back and get the other half. He had orders on leaving Tyler to meet No. 2, a passenger train on defendant's railway, at Athens, at 10 o'clock and 20 minutes, A. M., and owing to the time he had lost in dividing train at the hill he was pressed for time in making the trip with the last half of the train. It was on this trip the dog was killed. He saw, just as he turned around a curve ahead of the train, on the track some boys and some dogs. The dog which was killed by the train got scared at the train, and ran on ahead some 200 or 300 yards. He opened steamcocks to scare the dog off, but just before they got to a road crossing they caught the dog in a stock gap. Was traveling pretty fast before the dog was killed, and could not have stopped the train in the distance the dog ran if he had tried, and, besides, was pressed for time, as ...