St. Louis Southwestern Ry. Co. of Texas v. Wallace , 1917 Tex. App. LEXIS 1185 ( 1917 )

A question made by the assignments is whether or not the evidence in the record in support of the plaintiffs' action for damages is legally sufficient to support the findings by the jury that the death of the child was the proximate result of the negligent failure of the operatives of the train to keep a proper lookout. The blood stains on the cross-ties outside and near the east rail, and at no other place, at a point between eight and ten feet north of the private crossing, would indicate that the child met her death at that particular place. She was then outside of and near the east rail, and not on the track between the rails. The fact that the child met her death at the point mentioned, in connection with the further fact that the train was seen to stop at the crossing, would authorize the inference that the locomotive struck and killed her. In order to reach the ties near the east rail, the child, in coming from the house located on the west side of the track, must have crossed the track at some moment before being struck by the locomotive. But how long she was upon the right of way or near the track in advance of the train does not appear except from presumption. According to the mother's evidence the child was in her lap in the house "a few minutes before," "just a short time before," the injury. In this "few minutes before" the injury the child, in order to reach the place of injury, would have to walk 135 yards, the distance, it appears, from the house to the crossing. From common knowledge a child of that age may not walk that distance very rapidly. And it appears that the freight train, headed in the direction of the crossing, was running at a speed of 25 or 30 miles an hour. It does not appear from any evidence where the train was "a few minutes before" the injury, but all the circumstances reasonably point to the only inference that the train was fast approaching the crossing at the time the child reached, or very nearly so, the crossing. But there does not appear any evidence to show, or circumstances tending to show, that the operatives of the train saw the child at any time at any point before the injury, except the bare, unexplained fact that the train stopped, the caboose resting on the crossing. This act of stopping the train at the place would indicate that the operatives of the train had tried to stop the train either before actually striking or upon striking the child. And the circumstances are in keeping with the inference that the operatives of the train did not discover the child in time to avoid striking her. The jury in this case even so found. And the operatives of the train could not, it appears, from a point 160 steps from the place where the child was killed, see the child on the right of way, by reason of the bushes, and "until the child had gotten within five or six feet of the track." There does not appear any evidence as to the distance within which the train could be stopped, running as it was at the speed of 25 or 30 miles an hour. A reasonable lookout, varying according to the danger and all surrounding circumstances, to discover infants near or on the track is a duty devolving on those in charge of a moving train. Railway Co. v. Hammer, 34 Tex. Civ. App. 354, 78 s. W. 708. But a failure of the operatives of the train to keep a proper lookout along the track, if they do fail, can only be deemed the proximate cause of the death of an infant near the track when it appears that the keeping of such lookout would have prevented the injury resulting in death. Railway Co. v. Shoemaker,98 Tex. 451, 84 S.W. 1049. And here it appears from all legitimate inferences that the child was not discernible by the operatives of the train at any time before she reached a point within five or six feet of the track, and then so near in advance of the approaching train as to render unavoidable her being struck by the locomotive. It cannot be presumed that the operatives failed to keep a proper lookout, but such fact would have to appear by evidence or inference from circumstances. The condition of the right of way is important in the case only as an incident affecting the question as to whether or not a proper lookout was kept by those in charge of the train.

It is concluded that the judgment should be reversed, and, in view of the record, that the cause be remanded, and it is accordingly so ordered.