Texas & P. Ry. Co. v. Shoemaker

• Citation: 81 S.W. 1019
• Parties: TEXAS & P. RY. CO. v. SHOEMAKER et al.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 11 June 1904
• Court: Court of Appeals of Texas

81 S.W. 1019

TEXAS & P. RY. CO. v. SHOEMAKER et al.^*

Court of Civil Appeals of Texas.

June 11, 1904.

Appeal from District Court, Parker County; J. W. Patterson, Judge.

Action by Susan H. Shoemaker and others against the Texas & Pacific Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

B. G. Bidwell and H. C. Shropshire, for appellant. Stevenson & Ritchie and D. M. Alexander, for appellees.

STEPHENS, J.

This appeal is from a verdict and judgment in favor of Susan H. Shoemaker in the sum of $2,572 for the loss of two sons, Charles and Fred, the one 18 and the other 19 years old, who were killed by one of appellant's trains June 4, 1900, about a mile and a half or two miles east of the town of Millsap, in Parker county, Tex. They were killed about 11 o'clock at night, in the field on the place where they lived, while on the railway track, where appellant had it fenced in with a good four-wire fence, and seem to have been some distance apart when they were struck by the passing train; the estimates of the witnesses, based on observations made the next morning, ranging from twenty to one hundred yards. They lived with their mother, some two or three hundred yards south of the railroad—the house being southeast of, and still farther away from, where they were killed—and left home after 10 o'clock that night to hunt Jim Hatfield, their brother-in-law, who seems to have gone to Millsap that evening for medicine for his wife, who was sick at the Shoemaker home. When they left the house they went towards the railroad, taking divergent paths, so as to find Hatfield, which may account for the distance they seem to have been apart when killed. To reach the railroad, they had to go through the wire fence or over a stock gap. According to the testimony of Mrs. Shoemaker and an older brother, they left the house at 10 minutes after 10 by the watch kept there, which, however, was admittedly not a good timekeeper. Not long after they left, Hatfield came in; and the west-bound passenger train, due at Millsap at 11 o'clock that night, by which it is claimed they were killed, was observed to pass, both by Hatfield and Mrs. Shoemaker. Hatfield then went down the path towards the railroad and called the boys, but, failing to receive any response, soon returned, and retired with the rest of the family for the night. The next morning the mangled remains of their bodies were found scattered along the railroad. No eyewitness to the killing was produced, and no evidence was offered tending to prove that the trainmen had any knowledge of the peril issuing in the...