Lewis v. Galveston, Harrisburg & San Antonio Railway Co. , 73 Tex. 504 ( 1889 )

Gaines, Associate Justice.—

The appellant was plaintiff in the court, below, and a general demurrer having been sustained to his petition, ha-assigns that ruling as error.

The cause of action is stated in the petition as follows:

“That heretofore, to-wit, on the 16 th day of September, 1883, the said: defendant corporation was engaged in running and propelling cars for the conveyance of passengers, building material, and other freight over the line of railroad owned and operated by the said defendant corporation in the city of San Antonio, in the county and State aforesaid, on, along and across' the streets of said city; that the plaintiff on the said 16th day of September, 1883, between the hours of 3 and 4 o’clock p. m., was walking doAvn the railroad track constructed and operated by the-said defendant corporation on and along a certain street, to-wit, Walnut-street, in said city, which street and track is commonly and necessarily used and was at the time aforesaid so used by the plaintiff, his neighbors, and the public generally in reaching their homes and places of business and occupation, Avhen and where the servants, agents, and employes, of the said defendant corporation, operating a train owned and controlled by it, Avithout any Avarning or signal whatever to said plaintiff and oth. ers, and notwithstanding said train was then and there being operated' on a doAvn grade of great fall and length in a densely populated part of said city, on and along said Walnut street as aforesaid, illegally and unlawfully made a drop switch with two cars heavily loaded Avith lumber and other heavy building material, which said cars were so detached from the said train by the servants and employes of the said defendant corporation, and without signal or warning, and after having only a few moments before gone forward at a very high rate of speed, and sent speedily and almost noiselessly down the said grade for a considerable distance southward, to-wit,'one thousand yards; and that by reason o£ such gross, and wicked negligence and malicious conduct and actions of the servants, agents, and employes of the said defendant corporation operating-the train aforesaid, knocked down and ran over this plaintiff, the said Morgan Lafayette Lewis, without any fault or negligence on his part, injuring, bruising, and wounding him in several places from head to foot, and depriving him of his left leg, which in consequence of said injuries, was necessarily amputated above the knee, thereby crippling him for life, and otherwise permanently injuring him.”

We think the petition good on general 'demurrer. We must construe-the allegation that the railroad track was "necessarily used" by the public-in passing along the street to mean that the street was so narrow or otherwise so obstructed that there was not room to walk along it without going-upon the track. However improbable this may seem it is not a matter of judicial knowledge, and we can not say that it is not a fact admitted by the demurrer. The right of a railway company to construct and operate its line along a street of a city does not deprive the public of their right to use it as a public highway. Prudence may demand that a passenger should not go upon the track if it can be conveniently avoided, but if the use of the track as a footway should be necessary to the use of' the street, one so using it could not be deemed a trespasser. Railway Co. v. Walker, 70 Texas, 126. A person using a railway track under such, circumstances is bound to use care commensurate to the danger thereby incurred, and in a like manner a railroad company is required to exercise-care proportionate to the risks incident to such use of its track. Admitting that the facts alleged are such as to require that the plaintiff should show that he is not guilty of contributory negligence, we think that the-allegation that he was " without fault or negligence ” is all that can be-required upon general demurrer. It is clearly negligent for a railroad company to permit detached cars without signals or warning to run down grade through the streets of a city when the public had the right to use. the track in passing along the street.

It may be that if special exceptions had been interposed to the petition on account of the generality of the averments as to the necessity of the use of the track by passengers along the street and as to the absence of negligence on part of the plaintiff, they should have been sustained and he should have-been required to show by his petition the circumstances which rendered such use necessary, and also the acts of diligence used by him in order to avoid the injury. There being no special exceptions we do not pass upon the question.

For the error of the court in sustaining the general demurrer to the petition the judgment is reversed and the cause remanded.

Reversed and remanded.

Delivered April 16, 1889.