COWLES v. M.K. T. RY. CO

Campbell McMeans (R.E. Erwin, on brief in appellate court), for plaintiff in error. — The Court of Civil Appeals erred in holding that the railway company owed to deceased no duty to discover him on the track and of warning him of his danger, unless it knew that he was then on the track, because the place at which he was killed had been for years commonly and habitually used by the public as a walkway and public thoroughfare within the knowledge of the railway company and its servants who were then and there operating the train, and with the tacit consent of and without objection by the appellant; and the law made it the duty of such servants to keep a lookout for persons that might be expected to be on said track at said place, and to avoid injuring them. Railway v. Smith, 87 Tex. 359; Railway v. Crosnoe, 72 Tex. 79; Railway v. Schuster, 7 S.W. Rep., 874; Railway v. Hewitt, 67 Tex. 479 ; Railway v. Watkins, 88 Tex. 20; Railway v. Harvin, 54 S.W. Rep., 630; Railway v. Brooks, 54 S.W. Rep., 1056; Railway v. Woodward, 63 S.W. Rep., 1051; Railway v. Laskowski, 47 S.W. Rep., 59; Railway v. Crowder, 25 Texas Civ. App. 536[ 25 Tex. Civ. App. 536]; Railway v. Holland, 27 Texas Civ. App. 397[ 27 Tex. Civ. App. 397]; Railway v. Oslin, 26 Texas Civ. App. 370[ 26 Tex. Civ. App. 370]; Railway v. Keelin, 62 S.W. Rep., 261, and authorities cited; Shelby v. Railway, 3 S.W. Rep., 157; Cooper v. Railway, 11 Am. St. Rep., 484; Railway v. Boderner, 32 Am. St. Rep., 218; Lampkin v. McCormick, 83 Am. St. Rep., 245.

The Court of Civil Appeals erred in applying the doctrine of discovered peril to the facts of this case, because the evidence abundantly shows that the place where deceased was struck and run over was one commonly and habitually used by the public for many years with the knowledge of and without objection by the railway company, and was a place where employes of the railway company in operating its trains could reasonably expect some person to be, and the duty rested upon such employes not only to avoid injuring a person in danger after the peril was discovered, but to use ordinary care before moving cars to discover such persons and avoid injuring them. See authorities quoted under our first assignments of error.

And even if the doctrine of discovered peril was applicable to the facts, the Court of Civil Appeals erred in holding that there was no evidence that appellee's servants saw deceased and his perilous position in time to have avoided running the car against him, because there was ample evidence to justify the jury in concluding that the conductor who had charge of said train and of the members of the crew did see the deceased and his perilous position in time to have warned him, or otherwise have prevented his death. Brown v. Griffin, 71 Tex. 659; Railway v. Tabor, 12 Texas Civ. App. 283[ 12 Tex. Civ. App. 283]; Railway v. Phillips, 40 S.W. Rep., 344.

The Court of Civil Appeals erred in holding that, although for the purpose of crossing the track the deceased was a licensee, merely pausing on the track to examine the coupling appliance of the car made him a trespasser ab initio to whom the company owned no duty; because if his entry was right in one event, it can not be held to be wrongful ab initio in another.

The Court of Civil Appeals erred in holding that in stopping on the track to examine the coupler deceased was guilty of contributory negligence as a matter of law, because the evidence shows that the car at which deceased had stopped had been standing at said place all day, and that deceased did not know that there was an engine in the yard or at the station at said time, and did not know that the same was about to be moved, and received no warning or notice that said engine was moving a train of cars or that the same was about to be moved. See authorities under first assignment of error herein, and also: Railway v. Best, 66 Tex. 116; Railway v. Lee, 89 Tex. 583.

The Court of Civil Appeals erred in holding, in this case, that the statutory signals are intended for the benefit only of those who are about to use, are using, or have lately used the crossing, and that no others can recover for injuries resulting from a failure to give the signals; because the contrary is the law in this State.

The Court of Civil Appeals further erred in holding that the failure on the part of appellant's employes to give the statutory signals would not, as to deceased, in the place where he was standing when struck, be negligence. Railway v. Gray, 65 Tex. 32 [ 65 Tex. 32]; Railway v. Woodward, 63 S.W. Rep., 1053; Railway v. Brooks, 54 S.W. Rep., 1056.

The Court of Civil Appeals erred in holding, as a matter of law, that under the facts in this case the appellant was not guilty of negligence, and that the deceased was guilty of contributory negligence.

As the Court of Civil Appeals has no right to conclusively determine the facts of any case, when facts are in evidence in support of an issue, as in this case, the said court erred in conclusively determining the facts of the case, and thereby invading the province of the jury, and depriving appellee of her constitutional right of trial by jury. Choate v. Railway, 90 Tex. 88; same case, 91 Tex. 407; Washington v. Railway, 90 Tex. 315; Railway v. Lee, 89 Tex. 583. and authorities cited therein.

T.S. Miller and Marshal Thomas, for defendant in error. — The license acquired by the public to the use of the tracks of the railroad company was the right of crossing the same as ordinary pedestrians, and when the deceased stopped to examine the coupler he became a trespasser and intermeddler to whom the railroad company owed no duty until his presence was discovered. Grunst v. Railway, 5 Am. and Eng. R.R. Cases, N.S., 373; Hall v. Railway, 44 N.E. Rep., 489; Oatts v. Railway, 22 S.W. Rep., 330; Railway v. Vittitoe's Admr., 41 S.W. Rep., 269; Railway v. Mendoza, 60 S.W. Rep., 327; Kelly v. Railway, 8 Am. St. Rep., 879; Heinlein v. Railway, 9 Am. St. Rep., 678; Railway v. Breadow, 90 Tex. 26 [ 90 Tex. 26]; Railway v. Staggs, 39 S.W. Rep., 295; Railway v. Shetter, 94 Tex. 196.

The trespass of the deceased could not have been reasonably anticipated by the employes of the railroad company, and they were therefore not required to guard against an accident arising therefrom. Railway v. Cocke, 64 Tex. 151; Railway v. Bingham, 90 Tex. 223; Electric Light Co. v. LeFevre, 93 Tex. 604; Railway v. Kieff, 1 Texas Ct. Rep., 456.

The issue of discovered peril was not raised in the District Court and should not be considered in the appellate court.

The finding of the appellate court upon this issue involves purely a finding of fact, and there being evidence to sustain it, this court is without jurisdiction to review it.

The facts do not raise the issue of discovered peril.

Under the undisputed facts the deceased was guilty of contributory negligence as a matter of law. Railway v. Roberts, 10 Am. and Eng. R.R. Cases, N.S., 727; Lyon's Admr. v. Railway, 59 S.W. Rep., 507; Railway v. Ryon, 70 Tex. 59; Railway v. Walker, 49 S.W. Rep., 642; Beach on. Con. Neg., sec. 65.

The giving of the statutory signals was immaterial to any issue in the case, because it affirmatively appears from the plaintiff's petition that the deceased could not have heard the same had they been given.