Taylor, B. & H. Ry. Co. v. Warner

• Decision Date: 11 April 1895
• Citation: 31 S.W. 66
• Parties: TAYLOR, B. & H. RY. CO. v. WARNER et al.
• Court: Texas Court of Appeals

31 S.W. 66

TAYLOR, B. & H. RY. CO. v. WARNER et al.

Court of Civil Appeals of Texas.

April 11, 1895.

Appeal from district court, Fayette county; H. Teichmuller, Judge.

Action by C. M. Warner, joined by her husband, Albert Warner, and James R. Dublin, against the Taylor, Bastrop & Houston Railway Company, to recover for the death of the minor child of plaintiff C. M. Warner and James R. Dublin, from whom she had been divorced. From a judgment for plaintiffs C. M. Warner and husband, defendant appeals. Affirmed.

Brown, Lane & Jackson, for appellant. Moore & Duncan and W. S. Robson, for appellees.

GARRETT, C. J.

This was an action by C. M. Warner, joined by her husband, Albert Warner, and James R. Dublin, against the Taylor, Bastrop & Houston Railway Company, to recover damages for the death of Roland Dublin, the minor child of said C. M. Warner and James R. Dublin, which, as alleged, was caused by the negligence of the defendant in failing to make and maintain a proper crossing at the intersection of its railway with the public highway between the towns of La Grange and West Point, in Fayette county. There was a trial by jury, which resulted in a verdict and judgment against the defendant in favor of C. M. Warner for $5,000, and against the plaintiff James R. Dublin. The death of the child occurred August 18, 1888, and was caused by his falling from a wagon in which he was riding with his father, and being run over by a wheel of the wagon. The fall was caused by the dropping of a wheel into a hole or rut in the crossing. Defendant's railway was being constructed by independent contractors, under the supervision of the company's engineer, and the section of the railroad where the accident occurred had not been delivered to the company by the contractors. The dirt road leading from La Grange to West Point is a public highway, established and kept up as such by the commissioners' court of Fayette county, but the place where the `crossing was made is not in the public road established by the commissioners' court, though all of the travel goes over it. The true road established by the court crosses the railroad about one-fourth of a mile south of the crossing in question, but it is not used by the public, and the railway company made no crossing there, though it is worked by the road overseer, while the other is not. The portion of the road deviating from the established road is over level land, and requires no work. It had been used by the public for 10 or 12 years, and the construction company had made no other crossing near the place. The crossing had been made about eight or nine days when the accident occurred. It was constructed by spiking heavy planks to the ties on each side of the two rails, filling with earth on top of the roadbed, and throwing up earth approaches. The top of the road was about 18 inches above the level. A hole about 8 inches deep had been formed on the west side of the track by wagon wheels dropping from the plank into the soft earth, which made the crossing unsafe, and, as above stated, the accident was caused by the dropping of the wagon wheel into the hole. A reasonable time had elapsed within which the crossing should have been repaired. James Dublin, one of the plaintiffs and the father of the child, was driving the wagon, and approached the crossing from the east side. He had never been along the road before, and was not aware of the unsafe condition of the crossing. He could not see the hole from the side on which he was, and was exercising due care when he drove the wagon into the hole. The plaintiff C. M. Warner had obtained a divorce from him, with a decree awarding the custody of the child to her. At the request of the father, she had allowed him to take the boy from Uvalde county, where she resided, on a visit to his grandfather, in Fayette county, and he was returning home when he was killed. The record shows that James Dublin had been convicted of robbing the United States mail, and had been pardoned for the purpose of using his testimony in the prosecution of others; that he was a day laborer, and a transient character. The child, Roland Dublin, was seven years old when killed. He was bright, intelligent, very industrious, and healthy. He was the only child by ...