Wichita Valley Ry. Co. v. Meyers

• Decision Date: 02 December 1922
• Docket Number: (No. 10075.)
• Citation: 248 S.W. 444
• Parties: WICHITA VALLEY RY. CO. v. MEYERS.
• Court: Texas Court of Appeals

248 S.W. 444

WICHITA VALLEY RY. CO. v. MEYERS.

(No. 10075.)

Court of Civil Appeals of Texas. Fort Worth.

December 2, 1922.

Rehearing Denied January 20, 1923.

Appeal from District Court, Taylor County; W. R. Ely, Judge.

Suit by H. E. Meyers against the Wichita Valley Railway Company and another. From a judgment for plaintiff, the named defendant appeals. Affirmed.

Kirby, King & Keeble and Harry Tom King, all of Abilene, for appellant.

E. M. Overshiner, of Abilene, for appellee.

CONNER, C. J.

The appellee, H. E. Meyers, instituted this suit against the Wichita Valley Railway Company, and the Abilene & Northern Railway Company, alleging them to be partners, for injuries alleged to have been sustained by him, and also for injuries to the horse which he was riding, by the horse falling with him on the railroad track of the defendant at a street crossing in the city of Abilene, Tex. The plaintiff alleged that the defendants were negligent in not properly constructing and maintaining their track at the crossing in question, and in failing to restore the street to its original condition, or in such a condition as not to unnecessarily impair its usefulness, and in failing to construct a crossing at said street and to repair and maintain the same, but, on the contrary, had permitted said crossing to become defective and out of repair, thus causing the horse to stumble and fall, with the resulting injuries set out in the record.

Defendants answered by general and special exceptions, general denial, a denial of the partnership alleged, and averred that they had constructed and maintained a crossing on the said street of sufficient width to accommodate the public that might travel thereon, and had kept the same in repair; that the defects complained of by plaintiff were obvious, and plaintiff was guilty of contributory negligence in failing to avoid the same, and in crossing at an unsafe place when he could have crossed at a place that was safe and in good condition.

The court instructed the jury to return a verdict for the Abilene & Northern Railway Company, of which no complaint is made on this appeal, and submitted the case as to the Wichita Valley Railway Company in a general charge. The jury returned a verdict in favor of the plaintiff for $690, judgment was rendered accordingly, and from such judgment the Wichita Valley Railway Company has duly appealed.

The principal questions presented on this appeal are those arising upon the objections to the following clause of the court's charge, to wit:

"Now as the law applicable to this case, I give you in charge the following: That if the streets in the city of Abilene were in existence prior to the construction of the defendant's line of railway, you are instructed that the defendants had the right to construct their railway along and across said streets, but it was their duty to restore said streets to their former state, or to such a state as to not necessarily impair their usefulness, and to keep the crossing where said railroad crossed said streets, in repair, and failure to perform this duty would be negligence. It was the duty of the defendants to put said streets in such condition as the use of the same by the public would not be materially interfered with, nor the streets rendered less safe or convenient for persons passing over them, except in so far as the diminished safety or convenience are unavoidable from any crossing of a railroad. And this duty is not discharged by restoring said street for only a part of its width if thereby the usefulness of said street is unnecessarily impaired."

The court further charged the jury that a failure to observe the duties required by the law as thus given would constitute negligence, etc. The charge was objected to upon the grounds, in substance, that the evidence showed that the line of railway had been constructed by the Abilene & Northern Railway Company, and not by the Wichita Valley Railway Company, which was only operating the line, and therefore not charged under the law with the duty of restoring the roadbed, crossings, etc. The insistence is that in so charging the court charged upon an issue not raised by the evidence, in that, as stated, there was no evidence that "showed that the defendant, the Wichita Valley Railway Company, built the line of railway along the street as complained of by the plaintiff."

Article 6481, Rev. Statutes, provides that:

"Any railroad corporation shall have the right to construct and operate a railroad between any points within this state and to connect at the state line with railroads of other states."

Article 6485 provides that:

"Such corporation shall have the right to construct its road across, along, or upon any stream of water, water course, street, highway, plank road, turnpike, or canal which the route of said railway shall intersect or touch; but such corporation shall restore the stream, water course, street, highway, plank road, turnpike, or canal thus intersected or touched to its former state, or to such state as not to unnecessarily impair its usefulness, and shall keep such crossing in repair."

Article 6494 reads:

"It shall be the duty of every railroad company in this state to place and keep that portion of its roadbed and right of way over or across which any public county road may run, in proper condition for the use of the traveling public; and, in case of its failure to do so for thirty days after written notice given to the section boss * * * where such work or repairs are needed by the overseer of such public road, it shall be liable to a penalty of ten dollars for each and every week such railroad company may fail or neglect to comply with the requirements of this article, recoverable in any court having jurisdiction of the amount involved in a suit in the name of the county in which the cause of action accrued."

The duty of the railroad company to keep its roadbed and right of way across a public road or street in proper condition for the use of the traveling public, as prescribed by article 6494, is in accord with the decisions generally. See 33 Cyc. 273, par. C. It is there said:

"It is not sufficient for a railroad company properly to construct a crossing and to restore the highway crossed to a proper...