Hargis v. St. Louis, Arkansas & Texas Railway Co. , 75 Tex. 19 ( 1889 )

GAINES, Associate Justice.

The appellant brought this suit against appellee to recover damages for personal injuries. The evidence showed that he had gone do Mount Pleasant in a wagon drawn by two mules, and had started home. On approaching defendant’s road near the depot in that town, he discovered a freight train with its engine near the crossing,, standing on the track. His mules became frightened at the engine and unmanageable, when he alighted from the wagon and drove them across the track on foot. Having passed the crossing he halted his team very near it, and while in the act of mounting his wagon the whistle of the engine was blown, causing the mules to run away. He became entangled in the lines and was drawn a considerable distance, and thereby received the injuries of which he complains.

The assignments of error are mainly to the charge of the court as given and the refusal to give instructions asked by appellant. The first is that “the court erred in its charge to the jury as a whole in failing to charge-the degree of diligence required of the employes of defendant under the-evidence in this case in operating or running its engine or trains across a-public street in town.”

We think the objection to the charge is not well taken. The court correctly instructed the jury under what facts, if found by them, the plaintiff would be entitled to recover. It is commendable in that it contains no abstract propositions.

The second assignment is that “the court erred in the part of its charge in paragraph 4 which reads as follows: ‘But he must also show by such preponderance of evidence that employes of defendant did intentionally frighten the team of plaintiff and that he was thereby injured.’”'

If this instruction stood alone the charge would perhaps be objectionable on account of its failure to present the issue of the plaintiff’s right, to recover if defendant’s employes blew the whistle, knowing or having-reason to believe that the noise would probably frighten the team and endanger the safety of plaintiff. But in the same paragraph this issue is distinctly presented. It is again very clearly submitted in the subsequent paragraphs of the charge. The jury in our opinion could not have been misled by the instruction of which appellant complains.

The third assignment of errors is as follows: “The court erred in those parts of its charge in paragraphs 6, 8, 9,12, and 14, and other paragraphs of said charge similar in their effect, which charge the jury in substance to find for defendant unless they believe from the evidence that the employe or employes of defendant company caused the whistle and bell on the engine to be sounded or steam to escape as shown by the evidence, with the knowledge or belief that such noise or noises would or might frighten plaintiff’s team, and also for the purpose and with the intention to frighten plaintiff’s team.”

Upon this assignment it is impliedly assumed in. the propositions in appellant’s brief that the defendant was liable, although its employes did not know and did not have reason to believe that the noise would frighten the mules, and that it was the duty of the company’s servants to watch for teams near the track, and so to operate the engine as not to frighten them. We do not understand that the company or its servants owed to persons in charge of vehicles near its track any such duty. It is the duty of the company in running its trains to keep a lookout along its track so as not to injure persons who may be found thereon, at least at public crossings. But further than this, in our opinion, the duty does not extend. The law requires that under certain circumstances the whistles shall be blown or bells rung; and it may be presumed that the whistle and bell are necessarily used as signals in operating trains. It would seem to follow that persons in control of teams easily frightened, and unaccustomed to such noises, should exercise care in approaching trains, and should not unnecessarily stop in close proximity to them. The companies have a right to expect that this care will be exercised, and are not required to take steps to provide against the consequence of a failure to do so. However, we do not say that if the employes of a railroad company become aware that an unmanageable team is halted near the track it is not their duty to desist for a reasonable time from making such noises as may be avoided consistently with their other duties.

The assignment that there was error in the eleventh paragraph of the charge is not well taken. In that paragraph the jury are told in substance that if plaintiff knew that his team was afraid of the engine, and after crossing the track in safety he had time to have moved on to a safe distance, and stopped voluntarily and unnecessarily, and “ while so standing” the employes, for the purpose of backing the train, gave the usual signals and frightened the team, the plaintiff could not recover. The instruction was correct. It is not to be seriously contended that a person by voluntarily stopping an unsafe team near a train could make it the duty of the employes of a railroad company to aivait his pleasure in driving on before resorting to the usual signals for starting the train. They would have the right to conclude that he knew his own business best, and that he had his team under his control.

The court did not err in refusing the special charge asked by plaintiff. The excellent charge given by the court had already presented clearly the law applicable to every phase of the case made by the testimony, and additional instructions were neither necessary nor proper.

There is no error in the judgment, and it is affirmed.

Affirmed.

Delivered November 5, 1889.