Gulf, Colorado & Santa Fe Railway Co. v. Pendry ( 1895 )

April 10, 1889, Mrs. Pendry, wife of E.C. Pendry, was a passenger on one of the street cars of the Fort Worth Street Railway Company, travelling along Belknap street, of said city, in the direction of the intersection of said street with the track of the Gulf, Colorado Santa Fe Railway Company, and at the same time a train of flat cars was, by one of the engines of said railroad company, being backed over its said track toward said intersection. A collision ensued, in which Mrs. Pendry was injured; and this suit was brought by her husband, E.C. Pendry, against both of said companies, to recover damages therefor.

There was much conflict in the testimony as to the rate of speed said car and train were respectively travelling, at and immediately before the collision, and as when each became visible to the servants operating the other just before the collision, on account of fences and houses, and a curve and cut along and through which the train approached the intersection, and as to the distance each was from the intersection when the servants of the other discovered its approach.

The undisputed evidence shows, that Mrs. Pendry, immediately before and at the time of the collision, was sitting in the street car with her back to the approaching train, and was not aware of its presence until the moment of the collision, when the frightened appearance of a passenger in front of her caused her to turn and look, and she discovered the train and rose to her feet as the collision occurred.

Upon the verdict of the jury the court below rendered, and the Court. of Civil Appeals affirmed, a judgment in favor of E.C. Pendry against the railroad company for $6500, and against said Pendry as to the street car company.

The Gulf, Colorado Santa Fe Railway Company, plaintiff in error, has brought the case to this court by writ of error.

It is urged, that the trial court erred in not submitting the issue of contributory negligence on the part of Mrs. Pendry.

In this case the burden of proof was upon defendant to establish by evidence its defense of contributory negligence on the part of Mrs. Pendry. In order to do so, it would have been necessary to show, that at the time of or immediately before the collision she failed to use such care and caution as a reasonably prudent person would have used under like circumstances to avoid the injury, and that such failure was one of the proximate causes of the injury.

If it be conceded that the driver of the car was negligent, that fact would not tend to support such defense, for his negligence would not be imputed to her.

In the absence of somecircumstance warning her of approaching danger, we are of the opinion that the jury could not properly have found her guilty of contributory negligence from the mere fact that it was not shown that she, while a passenger on a public conveyance, exercised any care to discover the approaching train.

The court did not err in not submitting to the jury the issue of contributory negligence.

The giving of the following charge is assigned as error: "If you believe from the evidence that the agents or servants of the defendant, the Gulf, Colorado Santa Fe Railway Company, in charge of and operating the train which it is alleged collided with the street car upon which plaintiff's wife was a passenger, in approaching the crossing of the street over which said street car was being operated, failed to keep a proper lookout for cars or other vehicles which might be approaching the crossing, or that such agents or servants of said railway company were running said train at a greater rate of speed than allowed by the ordinances of said city; and if you further believe from the evidence that the collision with said street car resulted from such negligence on the part of the said agents or employes of the Gulf, Colorado Santa Fe Railway Company, and that the collision would not have occurred but for such negligence on the part of said employes, you should find for the plaintiff as against the said defendant, the Gulf, Colorado Santa Fe Railway Company."

This charge declares, as a matter of law, that the failure of the servants of the railway to keep a proper lookout for cars which might be approaching the crossing, was negligence.

It may be, that from such failure the jury would have been justified in inferring negligence as a fact. It was, however, a question of fact to be found or inferred by the jury, and the court invaded the province of the jury in instructing them that such failure was negligence. Railway v. Lee, 70 Tex. 497; Railway v. Ryon, 80 Tex. 59; Railway v. Murphy, 46 Tex. 364 [46 Tex. 364].

The judgment is affirmed as to the street car company, and reversed and cause remanded as between plaintiff and Gulf, Colorado Santa Railway Company.

Reversed and remanded.

Delivered February 25, 1895.