Texas & P. Ry. Co. v. Shoemaker
| Decision Date | 13 February 1905 |
| Citation | 84 S.W. 1049 |
| Parties | TEXAS & P. RY. CO. v. SHOEMAKER et al. |
| Court | Texas Supreme Court |
Action by Susan H. Shoemaker and others against the Texas & Pacific Railway Company. There was a judgment of the Court of Civil Appeals affirming a judgment for plaintiff (81 S. W. 1019), and defendant brings error. Reversed.
H. C. Shropshire and B. G. Bidwell, for plaintiff in error. Stevenson & Ritchie and D. M. Alexander, for defendants in error.
The defendants in error recovered the judgment under examination for damages for the deaths of Charles and Fred Shoemaker, sons of defendant in error, who were killed by a train of plaintiff in error on the night of June 4, 1900.
The question upon which our decision depends is whether or not the evidence adduced at the trial in support of plaintiffs' action was legally sufficient to warrant the submission of the case to a jury. There have been two trials in the district court. At the first a verdict for defendant was directed and returned, which action was reversed by the Court of Civil Appeals, the majority holding that there was evidence to go to the jury, and Mr. Justice Stephens dissenting. At the last trial the submission of the questions involved to a jury resulted in a verdict and judgment for plaintiffs, which was affirmed by the Court of Civil Appeals, Mr. Justice Stephens being still inclined to the opinion that the evidence was insufficient, but assenting to an affirmance in deference to the former judgment of the court in obedience to which the district judge had acted. The question is before this court for the first time. The evidence is wholly circumstantial. The plaintiffs, with their two sons, lived in an inclosure, consisting partly of pasture and partly of cultivated lands, through which defendant's railroad ran from northeast to southwest. The field was north and the residence was south of and about 250 or 300 yards from the track. The track was fenced throughout the inclosure, but a private wagon road extended northwardly from the house, passed through the fences, crossed the track, and curved westwardly through the field. This was used by the family in carrying wagons and horses to and fro. They had been accustomed, when on foot, to take a shorter route, going through the fences and across the track west of the wagon road, and in this way a footpath had been worn which ran westwardly for some distance from the house and divided into two branches, one of which turned northwardly, crossing the railroad and intersecting the wagon road at one point, while the other continued in a westerly direction, and crossed the railroad and converged with the wagon road at other points further west. Just east of the inclosure neighborhood roads, much traveled, converged and crossed the track where there was a crossing. The railroad runs through a cut in the inclosure upon a grade descending to the west. Millsap, a station on defendant's road, is 2½ or 3 miles west or southwest, and a church a short distance east or northeast, of the inclosure. People in considerable numbers had been for years in the habit of walking, day and night, upon the railroad track going to and from these points to church, to school, and about other business or pleasure. The evidence shows that this had been observed by employés of defendant, such as section-men, trainmen, and roadmaster, and none of the witnesses had heard of any objection being raised. For some time before the accident members of the Shoemaker family, including Fred and Charles, had been ill with measles, and the hearing of the two boys had been to some, but not a great, extent, impaired. Members of the family had also lost sleep in waiting upon the sick. During the afternoon of June 4, 1900, a brother-in-law, whose health was precarious, went to Millsap and remained away so long that the family became uneasy about him, and Fred and Charles went in search of him, Fred taking the wagon road and Charles the footpath going towards the railroad. The time of their leaving, by a watch which was not reliable, was noted to be 10:10 p. m. They were never afterwards seen alive. Their mangled remains were found next morning and near the railroad track, between the points where it was crossed by the two footpaths, and about 250 or 300 yards from the house. The body of Fred was on the track between the rails, crushed into a shapeless mass. There were evidences to the east of the two bodies having been dragged along the track. The trunk of Charles, with head, both feet, and an arm off, was found lying at the ends of the ties on the south side of the dump 40 to 60 yards west of Fred's remains and about 20 feet east of the most westerly footpath. Fragments of bodies, shoes, etc., were found between the two bodies, and other parts were found further west. A piece of cloth from the trousers of one of the boys was found at a point some seven miles west of this place. The shoes found were all torn except one, which sat on the outside of the rail, and appeared to one of the witnesses as if it had been "pulled off and set down." It fastened with a buckle, and had been unfastened, and was uninjured. Its position seems from the record to have been between the two bodies.
The trains which were scheduled to pass this point between the times of the disappearance of the deceased and the discovery or their bodies were as follows, taking the time of their arrivals at Millsap: No. 92, eastbound, 10:45 p. m.; No. 5, passenger westbound about 11:00 p. m.; first No. 13, west-bound, 1:30 a. m.; second No. 13, west-bound, 5:40 a. m.; and No. 6, east-bound, 5:15 a. m. No. 5 is shown to have been on time that night, and some of the evidence indicates that No. 92 passed east after the boys left the house. As to the others, the record is silent. The conclusion from this is that other trains besides the one that struck the boys probably passed over one or both of their bodies, rendering it utterly impossible to know their position when they were first struck. The plaintiffs' theory is that the boys were killed by No. 5, the fast passenger, or "Cannon Ball train," as it is called by the witnesses; and a...
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