
    GULF, C. & S. F. RY. CO. v. WILLSON, Chief Justice, et al.
    (No. 536-3141.)
    (Commission of Appeals of Texas, Section A.
    May 7, 1924.)
    Courts (&wkey;247(7) — Court of Civil Appeals required to certify question to Supreme Court where opinion in conflict with that of another district.
    Where opinion of Court of Civil Appeals of a certain district is in conflict with opinion of such'court for other district, it is the court’s duty to certify the question involved to the Supreme Court under Rev. St. art. 1623.
    cgrxoFor other cases see same topic and KEY-NUMBER, in ail Key-Numbered Digests and Indexes
    Mandamus by the Gulf, Colorado & Santa Fé Railway Company against Samuel P. Willson, Chief Justice, and others.
    Writ granted.
    Nat. Harris and Allan D. Sanford, both of Waco, for applicant.
   BISHOP, J.

The Gulf, Colorado & Santa Fe Railway Company, by application for writ of mandamus, asks that ,the Justices of the Court of Civil Appeals of the Sixth Supreme Judicial District be required to certify tthe Supreme Court for decision a question decided by that court in the case of G., C. & S. F. Ry. Co. v. Taylor (Tex. Civ. App.) 198 S. W. 600. It is alleged that this case was filed in a justice court of McClennan county by W. J. Taylor against the applicant to recover damages in the sum of $150 for killing a horse; that Taylor there recovered a judgment; that the cause was appealed to the county court of said county, where Taylor recovered judgment for the sum of $150 damages and $20 attorney’s fees; that the evidence shows that the horse was struck and injured by one of appellant’s locomotives at a point within the switch limits of the town of Moody, said switch limits being a system of tracks for making up trains and storing ears without train orders, and said injured horse was thereafter killed by the section foreman; that the only negligence alleged by Taylor with reference to the killing of his horse was failure to fence the track at the place of accident; that the applicant answered by general demurrer and general denial, and pleaded specially that the horse was struck at a point within the station yards and switching limits of the town of Moody, where the railroad company is not required to fence its track; that on appeal said Court of Civil Appeals affirmed the judgment of the county court; that thereafter it filed its motion requesting that court to certify said cause to the Supreme Court on the ground that the opinion of the Court of Civil Appeals therein is in conflict with the opinion of the Court of Civil Appeals for the Second Supreme Judicial District in the case of G., C. & S. F. Ry. Co. v. Blankenbeckler, 13 Tex. Civ. App. 249, 35 S. W. 331, which motion was by the court overruled, and the opinion and decision adhered to.

In the case of G., C. & S. F. Ry. Co. v. Taylor the Court of Civil Appeals of the Sixth District in affirming the judgment of the lower court held that, though the undisputed evidence shows that the animal was struck at a point within the switching limits of the town of Moody, this fact alone was not sufficient to show that this point is one which the railroad company is not required to fence in order to avoid liability under article 6603, Revised Statutes, and that Taylor was entitled to recover under his plea that the track was not fenced at the place where the animal was struck, and in this connection says:

“It has been held in this state that the mere fact that a point is within what is commonly called the ‘switching limits’ of a railway company is not alone sufficient to determine, as a matter of law, that such place was not one which the railway company should inclose with a fence in order to avail itself of the protection against the killing of stock. H. & T. C. Ry. Co. v. Holbert, 182 S. W. 1180; Ft. W. & D. C. Ry. Co. v. Decatur Cot. Seed Co., 193 S. W. 392. There are other cases where language is used that would seem to bear a different construction, but we know of none in which the facts are such as to cause a conflict upon the legal proposition involved. We concur in the ruling made in the above-cited case, and affirm the judgment of the trial court.”

Applicant insists that in arriving at this opinion in the decision of this cause the court is in conflict with the opinion of the Court of Civil Appeals for the Second Supreme Judicial District in the case of G., C. & S. F. Ry. Co. v. Blankenbeckler, 13 Tex. Civ. App. 249, 35 S. W. 331, on the question as to whether a railroad company can be held liable for the value of stock killed or injured by its locomotives and ears within the switching limits at its depots and stations, under article 6603, on the plea that its track is not fenced, and without a showing of negligence on its part.

The case of G., C. & S. F. Ry. Co. v. Blankenbeckler was one in which a cow was struck and killed at Valley Mills, a town not incorporated, on the lines of the railroad; company, and at a point between the south ends of two switches, one of which was on each side of the main track. In its opinion, the court says:

“We are of opinion that the evidence, as well as' the conclusions of fact, indisputably show that the cow was killed within the switching limits and contiguous depot grounds of the-railroad company, and that these limits in law extend to and include the terminals and switch stands of all switches or side tracks at all depots and stations; and that public policy, in consideration of the safety to life and limb of employfis and operatives who are compelled to pass over the tracks on foot in coupling and uncoupling cars, and turning switches, and other duties, both in the daytime and at night, requires that there be no pitfalls or cattle guards on the tracks or grounds over which they are compelled, often in the most hurried manner, to move, in order to perform the duties incident to such business. And as a fence could not cross the yards and tracks without making cattle guards or stops, the railroad company .is not required to fence its tracks within the limits and terminals of its side tracks, switches, and switch stands, at its depots and stations.”

We think the opinions on this .question are clearly in conflict, and that under article 1623, Revised Statutes, the duty is imposed upon the Court of Civil Appeals for the Sixth District to certify same to the Supreme Court, and recommend that writ of mandamus be granted. Cassandra Warren v. S. P. Willson et al., 108 Tex. 262, 192 S. W. 529.

CURETON, C. J.

Mandamus awarded as recommended by the Commission of Appeals in opinion which is adopted.  