St. Louis Southwestern Railway Company v. F. A. Shiflet, 94 Tex. 131

BROWN, Associate Justice. The plaintiff in error instituted this suit to recover damages for the death of his son, Thomas Shiflet, who, he alleged, was killed on the track of the railway company through the negligence of its employes. The evidence tends to show that the accident occurred in the nighttime, in Henderson County, about two miles and a half from a little village known as Brownsboro, and upon the track of the railway company at a point where it was fenced.

It is charged that the servants of the railway company negligently failed to keep a proper lookout and thereby failed to discover the deceased, who was upon its track, and, running over him, negligently caused his death. The village of Brownsboro consists of two stores and a drugstore and one or two other houses. Between the village and the place of the accident and for some distance beyond that there are a number of houses near the railroad track where the farming people of that country reside.

Between the rails of the railroad dirt was thrown in until it was filled above the ties, the dirt being of a light color. Along the center and between the rails this dirt was packed down as if it had been traveled over by persons on foot, making a path over the dirt. It was proved by those who lived near by in the neighborhood that for a great many years it had been the habit of the people who lived near to the railroad, when they went to the village on foot, to walk to and from it along the railroad track, and that persons were seen almost every day traveling • upon the railroad in this way.

It was not shown that any objection had ever been made by the railroad company or any of its employes. Ho person had been seen to walk upon the track in the nighttime. From the place where the accident occurred, westward, the track was straight for 150 or 250 yards and the grade rose to the east, that is, towards the place of the accident. It was testified to that an engineer with a headlight burning could have seen a boy lying upon the track at the distance of 150 to 200 feet.

The engineer and fireman testified that they did not see the boys and did not know that anyone was hurt until they arrived at Tyler and found upon the pilot blood, pieces of clothing, and human flesh. At the point'indicated upon the defendant’s track and between the rails was found a pool of blood where there had been such a quantity of it that it ran down the embankment for several feet, and a short distance from it another pool of blood of considerable quantity.

The blood was spattered on the west side of the ties and the fragments of clothing, bones, and flesh were found at a distance of twenty or twenty-five feet from where the pool of blood was, but the remains were so mangled as to be not recognized except from the clothing. The train upon which the blood was discovered passed that point about 11 o’clock at night. Plaintiff in error, F. A. Shiflet, lived about two miles and a half north from Brownsboro and about the same distance from the railroad track.

On Sunday morning of the same day that the boy was killed at night, Thomas Shiflet, without permission of his father, left home to go down near to the railroad track to the house of a neighbor. He went to that house and there he was joined by two other boys and the three, at about 11 o’clock in the day, started to go back to Hr. Shiflet’s. The next time they were seen was at a point about ten miles west of Brownsboro on the railroad, at which point the three boys were together walking along the railroad track and going .west about 3 o’clock in the afternoon.

At the same point late in the afternoon just before night, the same boys returned, going eastward, walking along the defendant’s track. They were never seen again living; their remains were found the next morning as above stated. Upon the intelligence of the boy, Thomas Shiflet, the following testimony was given: The plaintiff in error testified in substance that the boy was just a common country boy of average intelligence, and it looked like he ought to have intelligence enough to know that if a railroad train passed over him it would kill him.

He was large enough to work around the place some and had just commenced to do his first plowing. Had been to school some, could read a little but could not write. The boy had been to Brownsboro a few times, sometimes with the father and a time or two he went alone to sell eggs and butter for his mother, but he had never been on a train or close to one. Witness did not believe that the boy had discretion to appreciate the danger that he might go to sleep. Did not have discretion enough to go alone to Kaufman or Greenville. W. P. Hollman testified that he knew the boy, Thomas Shiflet.

Did not think that he had sufficient intelligence to appreciate the fact that if he sat down on the railroad he was liable to drop asleep and get run over. Don’t think he had sufficient intelligence to stop and think over the fact and reason to himself that it would be dangerous for him to sit down for fear he might go to sleep. Witness had six boys of his own, and he could hardly keep them awake long enough to get them to bed. He based his opinion on his knowledge of boys generally, and said when a boy is tired and lies down he don’t believe he will go to sleep, but he will. J. S.

Hollman had known the deceased since he was six months old. He had seen him in Brownsboro and the boy had seen a train. The witness had heard the boy talk about the train. He was a boy of average intelligence, was not weak-minded, and was able to work intelligently.

The petition presented the case upon the ground that the deceased was upon the defendant’s railroad track at a point where-the public had used the railroad as a footway for a long time and to such an extent as to notify the railroad company of the fact and to impose upon it the duty of exercising the -care which would be required at a place where people might be expected to be upon the track.

It was alleged that the servants operating the train by which the boy was killed were guilty of negligence in failing to keep a proper lookout and in failing to discover him upon the track of the railroad, and also that the deceased was of such immature age and so wanting in discretion as not to be responsible for the negligence, if any, of being upon the defendant’s railroad. The defendant pleaded the contributory negligence of the deceased.

The trial court did not submit to the jury whether the deceased was rightfully upon the track, but in the charge given, assumed that being upon the track of the defendant’s railroad at the time and place when and where he was killed was

an act of negligence on his part and must defeat the right of recovery, unless the deceased was of such tender age and want of discretion that he did not know and appreciate the danger of his position.

Two theories of the manner in which the accident occurred are presented: (1) that the three boys were walking along the railroad track in the nighttime and were overtaken and run down by the train without any warning, the operatives upon the train failing to keep a proper lookout and failing to discover them; (2) that Thomas Shifiet and his companions, having walked upon the defendant’s track for some distance, being weary, sat down to rest, fell asleep upon the track, and were run over by the defendant’s train, the employes of the defendant being negligent in failing to discover the parties upon the track and failing to give any warning or use proper diligence to prevent the accident.

The plaintiff below presented and insisted upon the evidence that raises the issue that the deceased was asleep upon the track at the time he was killed, which evidence was admitted over the objections of the defendant. The court seems to have adopted this view of the accident and to have cast the case upon that line. We must treat the case as if the fact that the deceased was guilty of negligence in being upon the defendant’s track had been found by the jury.

In determining the question of the responsibility of deceased, we can consider only the testimony which supports the action of the court, and we must give to that evidence full weight, indulgí rig every inference that a jury might properly draw from it, and if a jury could have properly concluded that Thomas Shifiet was of such immature age and so wanting in discretion and intelligence that he did not understand and appreciate the danger of being upon the track of the defendant’s railroad at the time and place of the accident, the judgment must be affirmed; otherwise, it must be reversed.

The evidence showed that Thomas Shifiet was between 11 and 12 years old, most probably within two months of the latter age. This does not bring him within the age at which courts have held a child to be exempt, as a matter of law, from the charge of contributory negligence, neither does it place him at such age as the court will, as a matter of law, hold that he was responsible for his acts. It was a question of fact for the jury to be determined upon the evidence adduced before them.

If there was no evidence upon the subject, the issue should not have been submitted, or, having been submitted, the jury ought to have found for the defendant, because it devolved upon the plaintiff to show that, for want of discretion, the negligent act of the deceased was not imputable to him. Railway v. Hoffman, 82 Ill. App., 464; Railway v. Eininger, 114 Ill., 82.

Considering the deceased as responsible for his acts, he was upon the railroad track whether walking or sitting upon it, in a state of negligence, and the question is, was he so wanting in knowledge of the danger of his position and so incapable of appreciating that danger as to excuse him for being in the position of danger ? There is no evidence which tends to prove that Thomas Shiflet did not know the danger of being upon the railroad track, or that, knowing his danger, there was any reason why he should not have appreciated it as fully as any other person.

He had frequently been to the little town of Brownsboro, seen the railroad trains, and had more than once been intrusted by his mother to go to the village alone on business. He had on this occasion, according to the evidence, walked upon the track for a distance of perhaps twenty miles or more. That he must have known the danger of being upon the track is evident from the plain fact that standing upon a railroad track where trains pass necessarily involves danger.

To s.ay that one knows the danger of being run over by a railroad train, if upon the track, and yet does not appreciate the danger of being and remaining upon the track is contradictory not only in its terms but in the very substance of the proposition. The knowledge of such a danger necessarily involves an appreciation of it. Two of the witnesses swore that they did not believe that Thomas Shiflet was possessed of sufficient intelligence to understand that if he sat down upon the railroad track he might fall asleep.

Giving full force to this evidence and every inference to be drawn from it, can it be said that the boy’s failure to realize that he might fall asleep had anything to do with his going into danger or remaining there? We can not understand how a jury could infer from the fact that he did not appreciate the danger of going to sleep that therefore he did not appreciate the danger of his position, and it seems to us that the consciousness of danger in the place he occupied constitutes the negligence and establishes the responsibility for remaining in that position.

If he had remained awake, either sitting or standing upon the track, and the accident had occurred to him, he could not have been excused, because he was negligent and was responsible under the facts for his acts. Being negligent and responsible while awake; his falling asleep did not palliate or lessen the degree of his negligence. Ecliff v. Railway, 64 Mich., 203.

In the case cited, a boy 12 years old was riding upon the front of a locomotive and the court said: “The fact that a boy of that age is more reckless and not as cautious as a man in the face of such danger is not, of itself, enough to excuse him.” The liability to go to sleep can not excuse the negligence of being in a place of danger. This is not like the case of Railroad v. Sympkins, 54 Texas, 615, where a man, in attempting to cross a railroad track, fell down in a fit and was run over. In that case, the man was not conscious of the dan- - ger of his position and could not have prevented the accident..

He was overtaken by the fit unexpectedly, and, so far as the evidence showed, while he was in the act of passing over the track. The case is not analogous to the turntable eases, in which it has been held that a turntable offered to boyish inclination for sport an invitation to ride upon it, was the means of exciting his childish curiosity, and leading him into danger.

Admitting that all hoys are liable to fall asleep when they lie down, this does not excuse a boy who is conscious of his danger for lying down or sitting down in a place of danger and thereby, through his own act, subjecting himself to that infirmity. The natural inclination to sleep did not induce him to go upon the track, but it enhanced the danger to himself.

It is claimed by the defendant in error that the evidence shows that the railroad track had been used at the point of the accident so constantly and for such a length of time as would excuse the deceased for being upon it at that time and place, and that the jury might have found that he was rightfully upon the track. Conceding, for the sake of argument, that the evidence was sufficient for the court to have submitted that issue to the jury, it was not so conclusive as to authorize this court to assume that the jury could not properly have found to the contrary.

If this court were to affirm the judgment upon that ground, it would be acting upon an issue not submitted to the jury and upon which they could not have passed, under the charge, and the judgment would be •without support in the verdict. Williams v. Conger, 49 Texas, 602. We are of opinion that the court improperly admitted the evidence that Thomas Shiflet was not of sufficient intelligence and discretion to go alone to other counties and to distant towns, because the evidence tended in no respect to establish his incapacity to understand and appreciate the danger of his position.

There being no evidence to sustain the finding that Thomas Shiflet was without sufficient discretion and judgment to understand and appreciate the danger of his position, the District Court erred in submitting that issue to the jury, for which error the judgments of the District Court and Court of Civil Appeals are reversed and this cause is remanded. Reversed and remanded.