Trinity Val. R. Co. v. Stewart

• Decision Date: 04 May 1901
• Citation: 62 S.W. 1085
• Parties: TRINITY VAL. R. CO. v. STEWART et al.
• Court: Texas Court of Appeals

62 S.W. 1085

TRINITY VAL. R. CO. v. STEWART et al.

Court of Civil Appeals of Texas.

May 4, 1901.

Appeal from district court, Walker county; J. M. Smither, Judge.

Action by Susan Stewart, individually and as next friend of Mary Stewart and David Stewart, minors, against the Trinity Valley Railroad Company. From a judgment in favor of plaintiffs, defendant appeals. Modified.

Campbell & McMeans and McKinney & Hill, for appellant. Hutcheson, Campbell & Hutcheson and Ball, Dean & Randolph, for appellees.

GILL, J.

This suit was brought by Mrs. Susan Stewart, for herself and as next friend of the minors Mary Stewart and David Stewart, its purpose being to recover of appellant, the Trinity Valley Railroad Company, damages for the death of J. M. Stewart, husband of Susan Stewart and father of the minors, which was alleged to have been caused by the actionable negligence of appellant. A trial by jury resulted in a verdict and judgment for appellees in the sum of $8,600. The cause is here on the appeal of the railroad company.

It was averred by appellees that the deceased was a passenger on one of appellant's trains; that the operatives of the train were inexperienced and incompetent; that the train was being run backwards at a dangerous and reckless rate of speed; that the company had no lookout to prevent collision with hogs or other objects that might be upon the track; that the operatives wholly failed to keep a lookout for objects on its track, and that the car on which deceased was riding was defectively constructed; that on the occasion in question the train was negligently run against a hog which was upon the track, whereby the car was derailed, and plaintiff's husband was killed; that the derailment, and his consequent death, were proximately due to the acts of negligence alleged. The appellant answered by general denial, and specially pleaded that the death of deceased was due to inevitable accident. Contributory negligence was also pleaded in defense. The facts are as follows: The deceased was the husband of Susan Stewart, and the father, by her, of the minors Mary and David Stewart. At the time of the accident he was an employé of the Columbia Lumber Company, and was engaged in cutting logs for the company. This work was being performed in the forest, some distance from the company's sawmill. The appellant was a corporation owning and operating a railroad, and under an arrangement with the lumber company carried deceased and his fellow employés to and from their work each day. On the occasion in question deceased, together with other employés of the lumber company, was riding on a lumber car of the railroad company going to his work. This car was being propelled by one of the railroad company's engines in charge of employés of the railroad company. The car was being pushed ahead of the engine at a speed of from 15 to 20 miles an hour. The car ran over a hog, which came upon the track, and was derailed, the accident resulting in the death of deceased. The evidence supports the...