Citations
- 102 Tex. 269
Full opinion text
Mr. Justice Brown
delivered the opinion of the court.
On the 11th day of August, 1905, W. J. Malone took passage at Dallas on the Missouri, Kansas & Texas Bailway for Boyse, a station on that road. He desired to go to a station called Burrow, a few miles from Boyse, but the conductor refused to stop the train at that place and he got off at Boyse. It was about 10 o’clock when he reached Boyse, and with a grip in his hand and a coat on his arm he started to walk on the railroad track to Burrow. He says that he walked slowly and rested frequently. At some time in the night near to 12 o’clock he reached a bridge over Sabine Creek. The bridge was about two hundred feet long and was at some points as high as twelve feet above the bed of the creek. When Malone reached the bridge he stopped and listened for a train and looked both ways to see if a train was coming and then started across the bridge. When he had gotten near to the farther end of it he heard a noise and, looking back, saw a train coming upon the other end of the bridge. He started to run with a view to escape from the train, but just as he passed off the bridge the locomotive struck him, knocking him off the track, broke his leg in two places, and injured his arm badly, inflicting upon him serious injuries. Malone lay there until next morning when the section foreman came along and picked him up and carried him to some place for -attention. The train was running ' at a speed of about thirty miles per hour. The fireman and engineer both testified that they did not see Malone upon the. bridge nor after he was injured.
Counsel for plaintiff in error admit that the evidence is sufficient to impose upon the railroad company the duty to keep a lookout for persons at that place in the day time, therefore, we will not make any statement of the evidence with reference to the use of the track during the day. The evidence as to the use of the railroad track at night by persons walking upon it is very' meagre. Comparatively few persons were shown to have walked upon the track at night. There is no evidence in- the record to show that any officer or agent of the company knew of the use of the track at night. The railroad company answered by general denial, by plea of contributory negligence, and specially pleaded that the appellee was either drunk or ■partially drunk, and lying asleep