"This is a suit brought by Frank Thomas, plaintiff below against the Weatherford, Mineral Wells & Northwestern Railway Company, defendant below, to recover damages for alleged
personal injuries claimed to have been sustained by Frank Thomas, on or about the 22d day of September, A. D. 1913, in Weatherford, Tex., in the yards and near the roundhouse of appellant, while he was attempting to pass through appellant's train and in going over and across said train of cars by going over and across the drawheads while said train was standing and the engine attached thereto was taking water at the water tank of said company near its roundhouse in Weatherford, Tex.
"Among other things, appellee alleged that on or about the 22d day of September he was shipping three cars of cattle on cars of appellant from Salesville to Ft. Worth, Tex., over the lines of appellant to Weatherford, and thence over the lines of the Texas & Pacific Railway Company to Ft. Worth; that he accompanied said cattle on said train and cars with the knowledge and consent of appellant, its agents, servants, and employés, and traveled on what is commonly called a drover's pass; that long before this time he had been continually shipping cattle and live stock over appellant's road from, through, and to said points for years, and in each instance accompanied said shipment of cattle and live stock as in this instance; that at, and long before, this time it had been the unvarying custom and practice of appellant to stop its train and cars before reaching its depot at Weatherford, Tex., at or near a spur or switch, to take on water and hold the train and cars there for some time; that when this would be done the unvarying custom and practice for the shipper, and those assisting him, was to get out of the caboose on the north side of said train and track, look after their cattle, and cross over the cars, going through and over the drawheads to the south side of the train and cars, and then go to the depot at said Weatherford and get their papers and contracts signed up so that there might be no delay; that up to the 22d day of September, 1913, this had been done for years, and was the custom and practice of all shippers on said road, and the same was then and there well known to appellant, its agents, servants, and employés, and said custom and practice had been continually in vogue all these years with the knowledge, consent, and acquiescence of appellant company, its agents, servants, and employés, and appellant had never, so far as appellee knows, made any objection to same, and the agents, servants, and employés of appellant, in the necessary discharge of their duties with said company, had customarily themselves gone down the north side of said trains and cars of cattle and crossed over the drawheads between the cars while said train and cars were standing still at said place taking water, and that they had done this in the presence of appellee and others, and had seen appellee and others do so a great number of times, and said appellant, its agents, servants, and employés knew at and before said time that at said time and place, when said train would stop to take on water, appellee would get out and look after his cattle, walking down on the north side of said train of cars and then cross over at the place where they customarily crossed over, going over and across the drawheads, between the cars of said train, to the south side of same, so that he could go to the depot and get his papers and contract signed up; that theretofore said train had always stood still at said place for a considerable length of time, and ample time for one to get out of the caboose and walk down on the north side of said trains and look after the cattle and cross over by going over and across the drawheads to the south side; that all this was known to appellee at said time, and relied upon by him, and was then and there well known to appellant, its agents, servants, and employés; that appellee at said time knew of no rule of said company against one's going over and across said train and cars by going over and across the drawheads while said train was standing still at said place and times and in such way and manner; that to cross over and through said cars at said time and place, by going over and across the drawheads when said train was standing still, was not dangerous; that at the time alleged herein, and long before this time, and continuously on up to this time, it had been the unvarying custom and practice of appellant company, its agents, servants, and employés at said place, before its train and engine would be moved, after having been stopped, as aforesaid, to take water, to notify the shipper or shippers and those in charge of the cattle and live stock, and to give a warning or signal of its intention to move, all of which was known to the appellee at and before said time, and was relied upon by him, and all of which at and before said time was well known by appellant company, its agents, servants, and employés; that at said time and place appellee, relying on said unvarying custom and practice of appellant company, its agents, servants, and employés, and relying upon the actions and statements of appellant, its agents, servants, and employés, and relying upon the said unvarying custom and practice of appellant company, its agents, servants, and employés to give a signal or warning before moving, or attempting to move or start, said engine or train, when said train and cars had reached said place and stopped to take water, got out of said caboose at the proper place and time and in the usual and customary way, and walked down to the point where he and others had crossed over the train and cars by going through and over the drawheads to the south side of same, and within the period of time said train usually stood still at said place, crossed and attempted to cross over on the south side of said cars, so that he could go and get his contracts signed up; that while appellee was in the act of crossing over the drawheads between the cars as he had usually done before, as above stated, and while he was thus on the drawheads and crossing in the usual way and manner of other drovers at said place when shipping cattle and live stock over said road when said train would be stopped to take water at said place, appellant, by agents, servants, and employés, without any character of notice to appellee, or without any character of warning, and before the train had stood at said place the usual and customary length of time, and before appellee had time to get out of the caboose and walk down and cross over the cars at said place to the south side, as had been his usual custom, started and backed said engine and cars with much force, and appellee's right foot was caught between the drawheads and cars and machinery and horribly mashed, crushed, and mangled all to pieces, rendering an amputation of same necessary, etc.; that appellant, its agents, servants, and employés were guilty of negligence in starting and moving said cars in the way and manner and at the time they started and moved said engine and cars, and in not warning or giving appellee notice before they started said engine, cars, and train, and said negligence was the direct and proximate cause of appellee's great injuries and damages.
"That long before this occurrence, as alleged above, and continuously up to and at said time, appellee had been engaged in shipping cattle and live stock over appellant's road; that up to said time it had been the custom and practice to run said cars to the point west of the depot of the Texas & Pacific Railway Company at Weatherford, Tex., and stop said train and cars to take water, and, while taking water at said time and place, for the shipper to alight on the north side of the train and look after his cattle and see if they were all up, and prod them up, if necessary, and that in doing this they often had to stand on the drawheads, all of which was known at the time to appellant, its agents, servants, and employés, and then cross
over to the south side by going over and across the drawheads between the cars so that the shipper could then go to the depot and get his contract signed up; that the agents, servants, and employés of appellant, in the discharge of their duties in and about said train and cars, had customarily, at said time and place, crossed over from the north side of said cars to the south side, by going over the drawheads at said place, when said train was standing still, and had done same in the presence of appellee and others; that said trains of appellant had always before stopped at said place long enough for the shipper to get out and look after his cattle and then cross over at said place between the cars, by going over, across the drawheads; that on said September 22, 1913, appellee was, as before alleged, a passenger on the freight train of appellant, riding on a drover's pass; and on said occasion, before said train reached Weatherford, Tex., and while in transit from Mineral Wells to Weatherford, Tex., the conductor in charge of said train told appellee and others in his presence that the train would stop at the place where it usually did before running into Weatherford, Tex., to take water and that it would be and stand there for some time, and that for him (appellee) to get out and look...
