Texas & P. Ry. Co. v. Watkins

• Citation: 29 S.W. 232
• Parties: TEXAS & P. RY. CO. v. WATKINS et al.
• Decision Date: 21 January 1895
• Court: Supreme Court of Texas

29 S.W. 232

TEXAS & P. RY. CO. v. WATKINS et al.

Supreme Court of Texas.

January 21, 1895.

Error from court of civil appeals of Second supreme judicial district.

Action by Kate Watkins and others against the Texas & Pacific Railway Company for personal injuries. From an affirmance by the court of civil appeals (26 S. W. 760) of a judgment for plaintiffs, defendant brings error. Affirmed.

George Thompson, for plaintiff in error. Ben M. Terrell and R. L. Carlock, for defendants in error.

DENMAN, J.

In September, 1889, the roadbed of plaintiff in error, in the city of Ft. Worth, Tex., from the Union Depot north to Seventeenth street, was constructed across a plot of ground, not a public square or street, upon an elevation consisting in part of embankments and in part of a bridge and trestlework over a ravine. Said roadbed appears to have been wide enough for three tracks, running practically parallel with each other, with the usual space between. On each side of the bridge was a plank walk with hand rails for the use of pedestrians crossing same. Said roadbed, on said date and for a number of years prior thereto, was in almost constant use by pedestrians as a footpath in going to and from said depot. About 10 o'clock p. m., September 20, 1889, defendant in error Mrs. Kate Watkins, with two companions and her little child, which she carried in her arms, was walking south between two of said tracks on said roadbed going to said depot, to take passage on one of the trains of plaintiff in error then about due, when a switch engine approached from behind on one of said tracks at the rate of from two to six miles per hour, without ringing the bell or blowing the whistle or giving any other warning of its approach. When the engine was within a few feet of defendant in error, a rumbling noise caused her to turn and look back, whereupon she was so startled and frightened by the close proximity of the engine that she jumped against it, and was knocked down, and received the injuries complained of herein. The distance between the tracks at the place of accident was about eight feet, and defendant in error would not have been struck had she remained where she was before she jumped. It appears that the engineer did not see defendant in error, and was not aware of her presence until he heard her scream when injured. At the time of the injury defendant in error was a married woman, but her husband died before the institution of this suit, leaving surviving him defendant in error and their two children as his only heirs; whereupon she brought this suit on behalf of herself and said children to recover damages resulting from such injuries, and also for expenses incurred in her sickness resulting therefrom. It was shown on the trial that there was no administration, and no necessity for administration, on the estate of the deceased husband. Defendant in error recovered judgment in the court below, which was affirmed by the court of civil appeals, and the cause is now before this court on writ of error.

It is not made to appear that any injury resulted to plaintiff in error from the fact that said children were joined in the suit as co-plaintiffs, and therefore it is unnecessary for us to determine whether the court below erred in holding them proper parties plaintiff. Railway Co. v. Helm, 64 Tex. 147; Lee v. Turner, 71 Tex. 264, 9 S. W. 149.

The court of civil appeals found as a matter of fact that plaintiff in error was guilty of negligence in running the engine so close to defendant in error without giving any notice of its approach. Plaintiff in error complains that this finding was an error of law, for the reason that defendant in error was either a trespasser or a mere licensee, and plaintiff in error owed her no duty to keep a lookout to discover her or give her any notice of the approach of the engine. It is often said that a railroad owes no duty to a trespasser or one wrongfully on its track, except to refrain from wanton injury to him. This doctrine has never been adopted in this state, but has been expressly repudiated. In the case of Railway Co. v. Sympkins, 54 Tex. 618, the court say: "We do not assent to the proposition that a railroad company may not become liable to one who is run over and injured by reason of the want of watchfulness of its servants, although such person may have been originally a trespasser on the track. If a party be wrongfully on the track under such circumstances, or, being there, acts in such a way as to be himself a proximate cause of his own injury, he will be precluded from recovery on grounds of public policy, as being himself...