Houston T. C. R. R. Co. v. Kincheloe , 56 Tex. Civ. App. 123 ( 1909 )

This is a suit by appellee against the Railway Company for $150, the value of a horse killed by one of appellant's trains in the town of Bertram. The case was tried before the court without a jury and judgment rendered in favor of appellee for $150, the value of the horse killed.

It is insisted by the appellant that the evidence is insufficient to establish the fact that the horse in question was killed by one of appellant's trains, and that the servants of the appellant were guilty of negligence. It appears from the evidence that at the place where the horse was killed the track was not fenced, nor was it required to be fenced. The animal was killed on the night of December 27, 1907, within the limits of the town of Bertram. There is evidence that would justify the conclusion that the horse was killed by a train going east, which passed through Bertram some time between 9 and 11 o'clock at night; that the horse was killed east of the depot, and between 700 and 800 yards east of the whistling post located upon the west side of the town. Between that whistling post and the place where the horse was killed are five public crossings; and it appears from the plat found in the record that the track is straight from the point where the whistling post on the west is located to where the horse was killed. In approaching the town from the west the whistle was sounded about the whistling post, but between that point and the place where the horse was struck the whistle was not blown. There is a conflict of evidence as to whether the bell was ringing. One witness testified that the bell was ringing and others testified that they did not hear it, but all agreeing to the fact that for none of the crossings in question was the whistle sounded, nor was it sounded for the purpose of frightening stock from the track. The train did not stop, but went through the town at a high rate of speed. It was the custom and habit of the residents of the town to turn their horses loose, and they frequently wandered within the yard limits of the railroad; and there is evidence tending to show that this custom was known to the employes operating the train, and on occasions prior to the time of the accident animals had been found upon the track and frightened from the same by an approaching train about the place where the animal in question was killed. The headlight of the locomotive was burning when the train passed through the town.

The tracks of the animal in question show that it went upon the railroad track, and was either upon the track or near the same when struck; and it is a reasonable inference from the evidence that if the engineer had maintained a lookout he could, by the exercise of ordinary care, have discovered the animal upon the track; and it is fair to assume that if he had sounded the whistle for the crossings, or the stock whistle, the animal doubtless would have been frightened from the track or a dangerous proximity thereto. Running through the town at a rapid rate of, speed without sounding any whistles giving any alarm of the approach of the train and keeping a proper lookout for animals, which the facts show might be found at any time upon the track within the limits of the town, was evidence that would justify the inference of negligence; and in this respect, on the facts as presented, the case is different from Gulf, Colorado Santa Fe Ry. Co. v. Anson, 101 Tex. 198, and Missouri, K. T. Ry. Co. v. Baker, 99 Tex. 452.

It is claimed that the evidence does not satisfactorily show that the train testified to by the witnesses was the one that struck the animal; or, in other words, was the only train that passed through Bertram on the night that the animal was killed. There was no eyewitness to the killing, and no one is able to state just how it happened, but the testimony upon this subject would justify the conclusion that only one train passed through Bertram the night of the accident, and that is the train testified to by the witnesses which passed going east between 9 and 11 o'clock.

There is no direct evidence that the engineer did not keep a lookout, but the facts would justify the conclusion that if he had kept a lookout he could and probably would have seen the animal before his engine came in contact with it. It was a straight track for a distance of between 700 and 800 yards, and the tracks of the animal show that it was near the track at places and finally went on the track. The headlight was burning, and it is not shown by the evidence that there was any obstruction that would prevent a view of the animal. If the discovery had been made, it is reasonable to assume that the engineer would have made some effort to check his train or sounded an alarm whistle, but nothing of the kind was done; and it is not an unreasonable explanation of his conduct to assume that he was not keeping a proper lookout in going through the town where animals were likely to be found, and that fact, together with the high rate of speed shown by the evidence and the failure to sound the whistle was the cause of running the animal down.

We find no error in the record and the judgment is affirmed.

Affirmed.