135 S.W. 694 | Tex. App. | 1911
J. K. Lee sued the appellant, railway company, in the justice court of Angelina county for the value of a mule which was killed on appellant's railway track by being struck by one of its locomotives operated upon the road, and recovered a judgment for $200.
The railway company appealed the case to the county court of Angelina county, where, upon a trial before the court without a jury, a judgment for a like amount was rendered in favor of appellee. From this judgment the railway company has prosecuted this appeal, and seeks a reversal of the judgment upon three assignments of error, the first complaining that the judgment against it was wrong, because the undisputed evidence shows that the mule entered upon the right of way of appellant through a gate; that the right of way was fenced, and that no negligence of defendant was shown; and the second complaining that the great weight and preponderance of the testimony showed that there was no negligence upon the part of the railway company at the time the mule was killed; and the third complaining, in substance, that the evidence showing that the right of way was fenced, and, the testimony being undisputed that the mule did not enter upon the right of way by reason of any defect in the fence, but by reason of a gate upon the right of way being left open, through which the mule entered, and which gate the railway was under no obligations to keep closed, the judgment should have been for appellant.
The testimony in the record justifies the following fact conclusions: On the night of September 12, 1909, the mule in question was turned into the pasture of J. K. Lee, Sr., but in some way got out and went upon the land of Mrs. Kemp; from thence it passed through a gate in the railway right of way fence onto the right of way, where it was struck and killed by a locomotive of appellant drawing a train over the track. The right of way was fenced, but the fence in places was low, *695 owing to the sagging of the wires of which it was constructed, at places where the staples holding it to the posts had pulled out, and low at other places where sand had washed up against it. The gate through which the mule entered was upon the land of Mrs. Kemp. This gate was not provided with sufficient fastenings to keep it shut, and it stood open most of the time. A railroad spike had been driven into the gate post for a catch for the latch, but it would not hold, and the least wind or jar against the gate would cause it to open. While the testimony shows that the gate was upon the land of Mrs. Kemp, there was no evidence that she owned the land on the opposite side of the right of way, nor that the railroad ran through her inclosure, nor that the gate was constructed to afford her an opening through the fenced right of way, nor that the same was placed there at her request or for her benefit. The evidence simply presents the question of the existence of a gate in the right of way fence, and that this gate, because of insufficient or defective fastenings, remained open most of the time, and when closed could be opened by the least jar or by wind blowing against it. It was not shown that there was any "crossing" over the track, or that the gate, as an opening, was such as is authorized by the act of 1887, p. 39, which is carried into the Revised Statutes of 1895 as articles 4427 to 4434, inclusive.
Article
In Railway v. Richmond,
In Railway v. Pruitt,
The facts giving rise to this opinion are substantially these: The railway ran through the appellee's farm. Appellee's house, barn, and pasture were situated on the north side of the track and the cultivated portions of the farm on the south side. The right of way was fenced. The railway company, in compliance with a statutory demand by appellee, placed a gate in its right of way fence to enable appellee to get to and from the parts of his farm situated on immediately opposite sides of the right of way. Appellee had nothing to do with, or control over, the gate or opening in the fence. The gate became out of repair, so that one end sagged so low that live stock could pass over it, and appellee's mule passed over it, when upon the track, and was struck and killed by a locomotive being operated upon the track.
In answering a question certified to it by the Court of Civil Appeals, the Supreme Court, in the same case (
We think under the facts of this case the appellant's track was not "fenced in," as that term is used in the statute, and as construed in the decisions above referred to, and that appellee was entitled to a judgment under the circumstances upon making proof that the mule was killed by being struck by the locomotive, without showing that the killing of the mule resulted from the want of ordinary care upon the part of the railway company.
Appellant cites and relies upon the case of Railway v. Hanacek,
We find no reversible error in the record, and the judgment of the court below is affirmed.
Affirmed.