San Antonio & A. P. Ry. Co. v. Dunn

Court of Appeals of Texas

San Antonio & A. P. Ry. Co. v. Dunn

207 S.W. 204, 1918 Tex. App. LEXIS 1333

CourtCourt of Appeals of Texas

DecidedDecember 18, 1918

DocketNo. 6121.

StatusPublished

This text of 207 S.W. 204 (San Antonio & A. P. Ry. Co. v. Dunn) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

San Antonio & A. P. Ry. Co. v. Dunn, 207 S.W. 204, 1918 Tex. App. LEXIS 1333 (Tex. Ct. App. 1918).

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Opinion

ELY, C. J.

Appellee sued appellant in the justice’s court to recover damages for three head of cattle killed and two injured by a train of appellant. In the justice’s court appellee recovered judgment for $160, and *205 on appeal by appellant to the county court judgment was rendered for appellee for $140.

The cattle were killed and injured at a public crossing when they suddenly darted across the railroad when the train was so close that it could not be stopped, although the engineer used all means in his power to stop it. The train was moving at the rate of about IS miles an hour before the cattle were seen about 50 feet distant attempting to cross the track. When the cattle were struck, the train was going about 12 miles an hour. It was the uncontradieted testimony that the cattle, when first seen, were standing about 50 feet from the track, and when the engine was near the crossing they attempted to cross the track. The engineer, as soon as the cattle started towards the crossing, sounded the whistle and used all means in his power to stop the train, but failed and struck the cattle.

[1, 2] The crossing could not he fenced, and in order to recover it devolved upon appellee to show negligence upon the part of appellant. Railway v. Leuschner, 166 S. W. 418. That was not done, and the judgment has no evidence to support it. It was not the duty of the engineer to slow the train down because he saw cattle standing 50 feet away from the track. He could not anticipate that cattle so standing, without evidencing any nervousness or excitement, would attempt to cross the track. Railway v. Morris, 63 S. W. 888; Railway v. Byrd, 58 Tex. Civ. App. 609, 124 S. W. 738; Irving v. Railway, 164 S. W. 910. The train was running at a low rate of speed, and the whistle blew for the crossing.

The judgment is reversed, and judgment here rendered that appellee take nothing by his suit and pay all costs in this behalf expended both here and in the courts below.

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ELY, C. J.

Appellee sued appellant in the justice’s court to recover damages for three head of cattle killed and two injured by a train of appellant. In the justice’s court appellee recovered judgment for $160, and *205 on appeal by appellant to the county court judgment was rendered for appellee for $140.

The cattle were killed and injured at a public crossing when they suddenly darted across the railroad when the train was so close that it could not be stopped, although the engineer used all means in his power to stop it. The train was moving at the rate of about IS miles an hour before the cattle were seen about 50 feet distant attempting to cross the track. When the cattle were struck, the train was going about 12 miles an hour. It was the uncontradieted testimony that the cattle, when first seen, were standing about 50 feet from the track, and when the engine was near the crossing they attempted to cross the track. The engineer, as soon as the cattle started towards the crossing, sounded the whistle and used all means in his power to stop the train, but failed and struck the cattle.

[1, 2] The crossing could not he fenced, and in order to recover it devolved upon appellee to show negligence upon the part of appellant. Railway v. Leuschner, 166 S. W. 418. That was not done, and the judgment has no evidence to support it. It was not the duty of the engineer to slow the train down because he saw cattle standing 50 feet away from the track. He could not anticipate that cattle so standing, without evidencing any nervousness or excitement, would attempt to cross the track. Railway v. Morris, 63 S. W. 888; Railway v. Byrd, 58 Tex. Civ. App. 609, 124 S. W. 738; Irving v. Railway, 164 S. W. 910. The train was running at a low rate of speed, and the whistle blew for the crossing.

The judgment is reversed, and judgment here rendered that appellee take nothing by his suit and pay all costs in this behalf expended both here and in the courts below.

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207 S.W. 204, 1918 Tex. App. LEXIS 1333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/san-antonio-a-p-ry-co-v-dunn-texapp-1918.

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