Houston & Texas Central Railway Co. v. Brin , 77 Tex. 174 ( 1890 )

HOBBY, Judge.

—William Brin, defendant in error, sued the plaintiff in error, the Houston & Texas Central Railway Company, in the District Court of Travis County, Texas, September 24,1883, alleging in his petition that plaintiff in error’s road on the 25th day of January, 1883, extended from Houston, in Harris County, to and through Corsicana, in Navarro County, Texas, over which line of road locomotive engines were run and operated.

That on or about the said 25th day of January, 1883, and while said defendant was operating and using its said railroad, plaintiff was a passenger on the cars and train of the Texas & St. Louis Railway, which last named company was at said time and still is a common carrier of passengers and freight, owning and operating a line of railroad from Texarkana, in the county of Bowie, and State of Texas, to the said city or town of Corsicana, in said county of Navarro, and through said town of Corsicana in such manner and so that the said railroad track of said Texas & St. Louis Railway crossed and intersected the said railroad track of plaintiff in error in and at the said town of Corsicana, and requiring of plaintiff in error, its agents, and employes the duty of exercising great care and diligence in the control and management of its engines and cars at and about said point of intersection.

That prior to said accident both of said roads maintained an eating house near said intersection, which was an eating station for passengers.

The defendant in error’s petition further alleged that while he was at or near said point of intersection of said railways on or about said 25th day of January, 1883, as aforesaid, and while in the act of going to the cars or coach of said Texas & St. Louis Railway as a passenger thereon, it was necessary for him to pass over the said track of plaintiff in error in order to arrive at said coach on the track of the Texas & St. Louis Railway, where it was standing, and that while he was so upon said track of plaintiff in error, plaintiff in error did negligently, carelessly, and willfully propel and drive along its track one of its said locomotive engines with such force and with .such speed and with such violence against petitioner so that petitioner was thereby wounded, bruised, and injured; that one of defendant in error’s ankles was thereby so bruised and sprained as to cause him great suffering and pain, and one of defendant in error’s knees was thereby so wounded, lacerated, and bruised as to cause and produce a permanent injury thereto.

The plaintiff in error answered the above and foregoing allegations of defendant in error by a general demurrer and general denial, and by special plea to the effect that the defendant in error was the sole cause and author of the misfortune that befell him, in that he was then and there in the attempt to cross this plaintiff in error’s track and right of way in front of one of plaintiff in error’s steam engines, and in full view thereof, and in so attempting defendant in error himself was then and there rash and reckless, imprudent, and incautious, and was so the cause and author of his own misfortune.

It appears from the evidence that the defendant in error was a passenger on the train of the Texas & St. Louis Railway; that he was injured in an effort to cross the track of the Houston & Texas Central Railway in order to board the passenger train of the Texas & St. Louis Railway Company. '

The defendant in error with his family were at the town of Corsicana, Texas, waiting for the Texas & St. Louis train to leave going south, and had been so waiting for an hour or more before that passenger train arrived from the north. When it arrived it pulled up to the depot and discharged its passengers, and then moved back across the track of the plaintiff in error (the two roads crossing at that point) to “coal up” the engine. ' The defendant in error testifies “that while it was taking coal the rest of those waiting rushed across the Houston & Texas Central Railway track, and I and my wife and children followed. When I got on the Houston & Texas Central Railway track, with my baby in my arms, its engine caught me and my baby on the pilot, falling backwards.” He further described his injuries, and testified that a great many persons were present, and it was between 8 and 9 o’clock at night. “Ho warning was given whatever,” he said, “or notice of the engine’s approach. Heard no bell or whistle.”

There was other evidence to the effect that he was warned not to cross the track, one witness testifying that he told him the passenger train of the Texas & St. Louis Railway, which had backed for the purpose of coaling, would return to the platform for passengers. There was proof also that there was no necessity for crossing the track of plaintiff in error to board the passenger train of the Texas & St. Louis Railway Company. There was proof also that the signals were given of the approach of the engine, and that the headlight was shining brightly, and that there was nothing to prevent defendant in error from seeing the engine approach.

Plaintiff below recovered judgment for §>613 and costs.

The first error relied on is that the court erred in giving the following charge, to-wit: “It is the duty of the defendant company and its servants and employes to ring the bell and blow the whistle on starting at a railroad crossing, and to keep a lookout for persons endangered from the movements of the engine, and to take and use such care and skill in handling the engine as to avoid inflicting injury as the most prudent in like business are accustomed to exercise.”

There was error in the foregoing instruction. The statute (Rev. Stats., . art. 4232) does not require the bell to be rung or the whistle to be blown “on starting at a railroad crossing.”

There seems to be no controversy as to the fact that the accident resulting in appellee’s injury occurred near a place where two lines of railroad cross each other. In approaching such crossing the engine is required to be “brought to a full stop.” Railway v. York, 74 Texas, 370.

It is proper to say that the charge did not require the use of such care and skill to avoid inflicting injury as “the most prudent in like business are accustomed to exercise,” but such as the mass of prudent persons in like business are accustomed to exercise.

The next assignment is as follows: “ The court erred in not giving the following charge asked and refused: ‘If the jury find from the evidence that the plaintiff’s ipjuries resulted from his attempting to.cross the railroad track immediately in front of an approaching locomotive engine propelled by the agents of defendant, the burden of proof is on the plaintiff William Brin to show affirmatively not only the want of ordinary care and caution on the part of the agents of defendant but the exercise of due care and caution on the part of plaintiff Brin; and if the jury find from the evidence that the negligence or want of due care or caution of the plaintiff, William Brin, caused the accident, or even contributed to produce the injury, or that it could have been avoided by the exercise of due care on the part of plaintiff Brin, then the plaintiff can not recover and you will find for defendant.”

There was no error in refusing this, because the charge of the court we think sufficiently instructed the jury, in effect, that appellee could not recover if he contributed to his own injury by the want of care and prudence.

For the error in the charge mentioned, we think the judgment should be reversed and the cause remanded.

Reversed and remanded.

Adopted May 6, 1890.