Texas & P. Ry. Co. v. Breadow

• Court: Texas Supreme Court
• Writing for the Court: Denman
• Citation: Texas & P. Ry. Co. v. Breadow, 36 S.W. 410 (Tex. 1896)
• Decision Date: 18 June 1896
• Parties: TEXAS & P. RY. CO. v. BREADOW et al.

36 S.W. 410

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

Supreme Court of Texas.

June 18, 1896.

Error to court of civil appeals of Fourth supreme judicial district.

Action by Johanna Breadow and others against the Texas & Pacific Railway Company. From a judgment of the court of civil appeals (35 S. W. 490) affirming a judgment for plaintiff, defendant brings error. Reversed.

Alexander, Clark & Hall and T. J. Freeman, for plaintiff in error. Leake, Henry & Reeves, W. C. Kimbrough, and Dudley G. Wooten, for defendant in error.

DENMAN, J.

Defendant in error sued plaintiff in error to recover damages for injuries inflicted upon her husband, Fred Breadow, March 7, 1892, resulting in his death. So far as it bears upon the question, we give the substance of the testimony. Paul Lake testified for plaintiff: "Breadow left me directly after the switch engine passed. He went straight across to the main track, and walked down the middle, between the main track and passing track. At the time I was working there, that was all level, and people used to walk between the two tracks. The path was like a snake, you know,—just wherever they walked. It would go along in the center a piece, and then go to the side. It is all level around about the depot, on both sides. There is a towpath commences up there at the shanty, and it goes from one track over to the other, just like a snake, between main and passing track. At the time,—the time that Breadow got killed,—the towpath was right close to the rail there, next to passing track. Right opposite where I was the path ran in the center. Below where I was standing the path ran over close to the rail of the passing track. Just about on top of the ends of the ties— The ends of the ties are about a foot outside the rail, and the dirt was just as high as the rail, and people would walk along there. When Breadow left me he went right down that way. He went straight across to the path when he left me. After he left me a freight engine, and some cars behind it, went by me; and I was kneeling on the rail on the rip track, looking under some cars, and about the time I looked under I heard a yell, and I looked around and I saw Breadow falling. After Breadow left me I kneeled down on the rail to look under the cars. The freight engine that passed me after Breadow left came from Ft. Worth, and after she had passed about a minute or so I heard a yell, and looked around and saw Breadow falling. The freight engine came from the west, and was going east. It was on the passing track. It was about a half a minute after it passed that I heard the yell,—probably not so long. When I heard the yell I ran down there. I was kneeling down when I heard the yell, and then I looked down to where Breadow was, east of there, and saw Breadow falling down. The cause of Breadow falling was that the beams of the engine struck him in the back,—the front timber of the engine struck him in the back. When I saw Breadow fall down he was facing east. At the time it struck Breadow the engine was going pretty fast,—about twelve miles an hour. The fireman and a brakeman were on the engine at the time. The brakeman's name was Weller. * * * When Breadow left me, and started down east, he was going home. He went in the path I have described. I did not see him walking in the path, but I think he did, though. The last time I saw him he got right over here between main and passing tracks, in the path, and then I did not pay any attention to him until I heard him yell. The last time I saw him, he had gotten over in the path; but, between that time and when I heard him yell, I don't know where he went. It is about 18 or 20 feet from where I was over to that path. * * * That was a broad way between the main and passing track,—nine or ten feet wide. About three people could stand abreast in that space when a train was passing. * * * I did not halloo to Breadow, or give him any signal. I did not know he was in any danger. He had plenty of room there to keep out of danger, and I supposed he would keep out of danger. When the engine that struck Breadow passed me the men on it were looking out the window, with their faces to the south. One of them was standing facing south in the gangway. The gangway is the place between the cab and the tender. The other man was on the box, and he was also facing south. That was before they struck Breadow,—about a half a minute before." Calvin Wilson, for plaintiff, testified. "Breadow was walking between the passing track and the main track. I was noticing Breadow before the engine got ten feet from him, and then I saw it was going to strike him, and before I could halloo it struck him. It was just a small jump between the rails of the two tracks. Breadow was walking tolerable close to the rail next to the passing track. That towpath is just a footpath, and everybody passes up and down on it. I have seen thousands and thousands of people walking on that path. I cannot tell who was on the engine that struck Breadow. I never did notice but one man on that engine, and he was standing between the engine and the tender, in the gangway. That is where he was when I noticed him. He had his face over towards Katie Thomas' house, south of there. * * * The towpath is between the main track and the passing track. Breadow was closest to the passing track. At that time that path was not straight, but they have straightened it now. It ran first in, and then out. The path was not a straight line. * * * I was on Indiana street at the time of the accident. * * * From the time I first observed Mr. Breadow, he was going east. I saw him all the time from the time I first saw him until he was struck. * * * I did not see him look back in the direction of the engine. He could have seen it if he had looked back. * * * As near as I can come, the distance from rail to rail, from the passing track to the main track, where that path was, was something like seven or eight feet at that time. I don't know that the width of that path has been changed any, but it is straightened up now, and it is level. That space between those tracks was level and smooth, just like that floor out there. There was plenty of room for Breadow to stand in there, with trains passing in both directions. I have seen peo...