Washington v. Missouri, K. & T. Ry. Co. of Texas

• Decision Date: 25 January 1897
• Citation: 38 S.W. 764
• Parties: WASHINGTON v. MISSOURI, K. & T. RY. CO. OF TEXAS.
• Court: Texas Supreme Court

38 S.W. 764

WASHINGTON v. MISSOURI, K. & T. RY. CO. OF TEXAS.

Supreme Court of Texas.

January 25, 1897.

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

Action by Lizzie Washington against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment of the court of civil appeals (36 S. W. 778) affirming a judgment for defendant on a directed verdict, plaintiff brings error. Reversed.

J. D. Wolverton and O. T. Holt, for plaintiff in error. Baker, Botts, Baker & Lovett, for defendant in error.

GAINES, C. J.

The following statement of the nature and result of this suit is taken from the brief of the plaintiff in error in the court of civil appeals:

"This is an action in which the appellant, Lizzie Washington, sued the appellee to recover damages for the wrongful death of her husband, Mose Washington, alleged to have been killed by the negligence and carelessness of the appellee, on the 31st day of December, 1894. The petition alleges: That the place of accident was on appellee's road, and near, and easterly from, the intersection of Holly street, or the extension thereof northerly, with appellee's track and right of way in the city of Houston. That, from the place of the accident on said road, and easterly a distance of 12 or 13 rods, appellee operates its train over and across a railroad bridge over a deep ravine, lying between the place of accident and the appellee's freight depot in the city of Houston. That, along and near said track of said road, and over the said bridge, and as a part thereof, there are sidewalks, with guard rails, made and used for the accommodation of foot passengers over and along appellee's right of way, from the bridge westerly up to and beyond the place of the accident, and at the time, and long prior thereto, with the knowledge and consent of the appellee, the public much frequented and used that portion and part of its right of way, both by day and night, where the accident occurred. That the deceased, Mose Washington, was rightfully along and near said track at the time the said wreck occurred by which he lost his life. That the negligence of which the appellee was guilty was in permitting its train to separate, and failing to manage it, by reason of which the same was wrecked, ran off the track, and one of the cars was thrown onto and killed the deceased, Mose Washington, without any fault or negligence on his part. While the said Washington was walking along said street said accident occurred, by reason of the train being wrecked and thrown from the track, and one of the cars falling upon him, which caused his death. Appellant alleged, by reason of the negligence of the appellee, she has been damaged in the sum of $10,000. Appellee, for answer, denied specially all the allegations in plaintiff's petition contained. A jury was demanded by the appellant, and the court, after hearing the testimony, directed the jury to return a verdict for the defendant, and, in obedience to this direction, a verdict was returned for the defendant, without the consideration of the testimony on the part of the jury."

The facts of the case in evidence are stated as follows by the court of civil appeals:

"The deceased, Mose Washington, who was the husband of the plaintiff, left his home in the latter part of the afternoon of December 31, 1894, telling his wife he was going on a hunt; and when she next saw him, about 9 o'clock on the next day, he was dead. She did not know of his ever returning to their house after he left on the afternoon of the previous day, nor did she know anything of his movements or his whereabouts after he left the house. The deceased was seen between 6 and 7 o'clock p. m., on December 31, 1894, walking on the right of way of defendant company, and near to its track, in the city of Houston. He was going east at the time he was seen on the right of way, and on this part of the right of way there is a footpath running by the side of the track of the railway, from the termination of Holly street to a bridge on said track over a deep ravine. This bridge was built by defendant some two years before the trial, and it is so constructed as to admit of an easy passage by footmen, and both this pathway and the bridge had been much used by many people living in the First and Fifth wards of the city. Holly street is west from this bridge, and between this street and the bridge the track of the road passes through a cut of some 7 or 8 feet in depth. The distance from this cut to the bridge is not shown with certainty, the evidence leaving it in doubt whether the distance is 100, 200, or 300 feet. In this cut, about 7 o'clock p. m. of the 31st of December, 1894, a train moving east upon the railway track, and operated by the employés of defendant, was wrecked, and the next morning, from under the wreck, and lying within 2 of 3 feet of the track, the dead body of Mose Washington was found, his head having been severed from his body. There was a flat car in the derailed train, and upon it was an oil tank, and from under this tank the body was taken. Between the place of the accident and the...