Texas & Pacific Railway Co. v. Staggs , 90 Tex. 458 ( 1897 )

The Court of Civil Appeals for the Second Supreme Judicial District has submitted to this court the following certificate of dissent:

"Assuming that J.W. Staggs was guilty of contributory negligence when run upon and killed by appellant's engine and train, was it or not correct for the court to charge the jury, in effect, that the widow and children of deceased would be entitled to recover, notwithstanding such negligence, if the train operatives, after discovering Staggs upon the track between a quarter and a half mile in front of the moving train, failed to use the care of a person of ordinary prudence to discover, in time to prevent or lessen the injury, when he was in actual danger and that he would not probably leave the track in time to prevent injury; as will more fully appear from the majority and dissenting opinions."

From the question certified and the opinions referred to, we understand that the deceased was upon appellant's track with a train approaching from behind him under such circumstances as made him chargeable with contributory negligence in not discovering the approaching train, and in not leaving the track. The persons who were operating the train saw the deceased upon the track when he was between a quarter and a half mile in front of the train, after which the employes of appellant failed to use ordinary care to discover that the deceased would not leave the track in time to prevent injury to him, and did not discover his peril, when it arose, in time to stop or slacken the speed of the train so as to prevent or lessen the injury. The district judge at the trial charged the jury, in effect, that the widow and children were entitled to recover under such state of facts, and the question of law submitted for our consideration is: did the District Court commit error against the appellant in giving that charge?

The question presented by the certificate was decided by this court in the case of Texas Pacific Ry. Co. v. Breadow,36 S.W. 410; 89 Texas, ___. In that case the proof showed that the engineer in charge of the locomotive saw the deceased near the track some distance ahead, but the evidence did not show that the engineer saw him at any time when he was in a position of danger, and this court, through Justice Denman, said: "If defendant, through the parties in charge of the engine, knew of Breadow's peril in time to have avoided same, such knowledge imposed upon it the new duty of using every means then within its power, consistent with the safety of the engine, to avoid running him down; and a failure so to do would render it liable, notwithstanding he may have been guilty of contributory negligence in being exposed to the peril. This new duty and liability for its breach is imposed, upon principles of humanity and public policy, to prevent what would otherwise be, as far as civil liability is concerned, the licensed destruction of persons negligently exposing themselves to peril. The same principle of law which, on grounds of public policy, will not permit a person to recover when his own negligence has proximately contributed to the injury, will not permit the party who has inflicted the injury in violation of such new duty to defend upon the ground of such negligence. The principle, however, has no application in the absence of actual knowledge, on the part of the person inflicting the injury, of the peril of the party injured in time to avoid the injury by the use of the means and agencies then at hand. If he had no such knowledge, the new duty was not imposed, though it be clear that by the exercise of reasonable care he might have acquired same. The burden of proof was upon plaintiff in this case, in order to recover for a breach of such new duty, to establish, not that the employes might, in the exercise of reasonable care, have acquired such knowledge, but that they actually possessed it."

If the deceased was not guilty of negligence in being or remaining upon the track of defendant's railroad, and if the employes of the railroad company failed to use such care as a person of ordinary prudence would have exercised under like conditions, to discover his presence upon the track, the widow and children of the deceased would be entitled to recover for his death, if caused by such negligence of the railroad company. If deceased was guilty of contributory negligence, his widow and children could not recover for failure to see him upon the track, or to discover his danger, because in such case their right of action would rest upon the negligence of the defendant, to which contributory negligence of the deceased would constitute a good defense.

If the deceased was negligent to that degree denominated contributory negligence, but the employes of the railroad company actually knew of his danger in time to have averted it, and they failed to use every means in their power, consistent with safety, to prevent the injury, the railroad company would be liable notwithstanding the negligence of the deceased. The law embodies the principles of humanity and public policy into that salutary rule which, applied to the facts of this case, required of the engineer when he discovered the peril of deceased, if it was discovered, to use every means in his power, consistent with safety, to prevent the injury. To an action for a failure to perform this duty, contributory negligence is no defense.

The District Court erred in charging the jury as stated in the question.