Texas & N. O. R. Co. v. Langham

• Decision Date: 07 March 1906
• Citation: Texas & N. O. R. Co. v. Langham, 95 S.W. 686 (Tex. App. 1906)
• Parties: TEXAS & N. O. R. CO. v. LANGHAM.
• Court: Texas Court of Appeals

95 S.W. 686

TEXAS & N. O. R. CO. v.LANGHAM.

Court of Civil Appeals of Texas.

March 7, 1906.

Appeal from Orange County Court; W. J. Wingate, Judge.

Action by J. B. Langham against the Texas & New Orleans Railroad Company.From a judgment for plaintiff, defendant appeals.Reversed.

Baker, Botts, Parker & Garwood and Chester & Chester, for appellant.Hart & Sholars, for appellee.

FLY, J.

Appellee sued appellant to recover the value of four head of cattle killed by appellant's train at Terry, a small station on its road.He recovered in a justice's court the sum of $180, and, on appeal to the county court, he recovered a judgment for $175 with 6 per cent. interest, and costs of the justice's court.The cause was tried by jury.

Only two witnesses swore to the circumstances surrounding the killing of the cattle, the engineer and fireman on the locomotive.They swore that they reached Terry, a small station, about 2:30 o'clock in the morning.That there was a heavy fog at the time, and, although they kept a close outlook along the track, they did not see the cattle until they were about 60 feet from them.The cattle were lying down on the track in about 10 feet of the depot.The whistle had been sounded for the station and the bell was being rung when the cattle were seen.The train was a special one transporting an opera company from Houston east, and was running at the rate of 50 or 55 miles an hour.No effort was made by the engineer to stop the engine and it was shown, without contradiction, that any effort to stop the train under the circumstances would have endangered the safety of the train and imperiled the lives of the passengers.The road was not fenced where the cattle were struck, because it was at the station.Terry was a place with only five or six houses in it and was not incorporated.The only evidence offered by appellee to contradict the statements of the engineer and fireman to the effect that the night was foggy, was the testimony of a witness that it was clear about 6 o'clock the same morning.We do not think that the evidence offered by appellee tended to contradict the evidence of the two witnesses as to the existence of a fog at the time the cattle were killed.This is recognized by appellee because he wants this court to infer that there was no fog in the night, because there was none next morning.He says: "This court knows that a foggy night brings a foggy morning as a matter of natural philosophy, and no doubt by observation, and the fog remains until the sun rises and dispels it, or the wind causes it to drift away."We do not think such matters are the subject of judicial knowledge.

As before stated, the train was a special, and was to stop only to get water or fuel, and the engineer and the fireman of appellant did not violate any law in running at a rapid rate of speed by a station, which at that time had only two residences, a store, and a depot.They could not anticipate, as argued by appellee, that people would be gathered at such a depot, at such an hour, to meet a train of whose coming they had no notice; and the employés were under no obligation to anticipate that appellee's Jersey cattle would go to the depot and make a bedding ground of the track.The proof, however, showed that a sharp outlook was being kept along the track, and that the cattle were not seen until it was too late to endeavor to stop the train.The cattle having been killed at a place where appellant was not required to fence its track, proof of negligence on...