Citations
- 1 Tex. Civ. App. 487
Full opinion text
COLLARD, Associate Justice.
This is a suit by the appellant, plaintiff below, for herself, as widow, and the minor children of herself and Frank Rozwadosfskie, for damages against the appellee, defendant below, resulting from the alleged negligent killing of Frank Rozwadosfskie by defendant, by running its freight train over him, at San Marcos, Texas, on the 9th day of December, 1888.
The court below instructed the jury to find for the defendant, which they did, and the judgment was so rendered; from which the plaintiff has appealed.
The facts of the case are as follows:
Deceased was about forty years old, a carpenter by trade, earning about $2.25 per day; a strong, robust man, and in good health. He lived with his family at San Marcos, Texas, about 230 or 265 yards from defendant’s depot. He was working at his trade at Kyle, through which defendant’s railway passed, about eight miles northeast of San Marcos. For several nights prior to the 9th of December, 1888, he was expected home as a passenger on defendant’s train. He sometimes drank to excess after his week’s work, when he was paid off, and his wife was expecting him home in an intoxicated condition. She sent her two boys, Martin and Frank, aged respectively 13 and 10 years, to meet him at the train and to conduct him home in case he was drunk. The boys had frequently met him at the train, and had brought him home, and on one occasion he was drunk, ‘ ‘ not very,” he never having refused to go with them. The night of December 9 was cold, and the two boys were at the depot, in the waiting room, where there was a fire, expecting their father on the train due later in the night. The station agent asked them what they were there for. Frank, the older boy, replied that they were there waiting for their father, who was coming on the train from Kyle. He told them that they had been there two or three nights, waiting for him, and that he had not come, and was not coming, and that if they did not leave the depot, and not come around there any more, he would have them arrested and put in jail. His manner and language were rough, and so frightened them that one of them was crying. They were not misbehaving. One of them had been seen about the depot, swinging on the steps of the cars and jumping off while the cars were in motion. They left, and when they got outside, a policeman told them to run on home and come back when they heard the whistle blow. This was 9 or 10 o’clock p. m. They went home and went to sleep, did not hear the whistle, and were not there when their father arrived on the train, between 10 and 11 o’clock on the same night, the 9th of December, 1888.
Deceased boarded the train at Kyle about 10 o’clock that night. Witness Johnson went with him to the depot and carried his baggage and assisted him on the train. He was drunk, but not imbecile. He knew what he was doing and where he was going; gave Johnson 25 cents, the exact amount, to purchase him a ticket to San Marcos. He staggered in walking several times, and would have fallen if Johnson had not assisted him. He had a bottle of whisky. In getting on the train he came near falling, and would have done so if Johnson had not caught him. The conductor was looking at him at the time. The steps from the ground were high, and there was no stool, and he had to catch hold of the step rail and pull himself up. The conductor on the train knew his drunken condition. He was helped on to the first seat after entering the car.
When the train arrived at San Marcos, deceased threw his bundle of clothes, or something of the kind, out before him on the platform, and then got out himself and leaned up against the car, when some gentleman took hold of him, pulled him away, and told him to “ look out.” After the train left, he was seen in the depot at the ticket window, talking to Mr. Collins, the agent, about his baggage, and said he would leave it there till morning.
Witness Meredith, speaking of this, says further: “I then came out of the depot house and started up to town, and when I was about Prince’s lunch stand, deceased called me, and came up behind me, and we then walked on together up to Brown