
    TEXAS & P. RY. CO. v. GULLETT et al.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 24, 1912.
    Rehearing Denied March 23, 1912.)
    Raileoads (§ 376) — Injuries to Person on Track — Discovered Peril — Negligence.
    Trainmen, who discover the peril of a person lying on the track, must use the means at hand to prevent injury to him, and where they carelessly fail to do so, and the person is killed by the train, the company is liable.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1275-1279; Dec. Dig. § 376.]
    Appeal from District Court, Van Zandt County; R. W. Simpson, Judge.
    Action by Mrs. Nellie Gullett, for herself and as next friend for minor children, against the Texas & Pacific Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    See, also, 134 S. W. 262.
    W. L. Hall and J. A. Germany, for appellant. Chas. H. Reese, John W. Davidson, and W. A. Davidson, for appellees.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   RAINEY, C. J.

Appellee, for herself and as next friend for her four minor children, brought this suit against appellant to recover damages for ,the negligent killing of J. B. Gullett, husband and father, by running an engine and cars over him. A recovery was had for $1,990, and the railway company appeals.

Only one issue is presented, that of discovered peril. The appellant contends that the evidence was not sufficient to support the verdict and judgment. The evidence shows that Gullett was lying on the appellant’s track at night, when he was run over and killed by one of appellant’s trains. He was lying near a crossing in the town of Grand Saline, and at a point where it was frequently and habitually used by the public as a pathway for travel for a long time prior to the killing, which was known to appellant. At this point the track was straight for about one mile, and there was nothing to obstruct the view of the engineer and fireman. They saw Gullett on the track and his danger in sufficient time, by the use of the means at hand, to have prevented the injury to Gullett; but they carelessly failed to use said means to stop the train.

The judgment is affirmed.  