Furst-Edwards v. St. Louis S. W. Ry. Co.

The writer concurs in the reversal of this case, because the charge of the court put the burden of proof on the plaintiffs on the issue of contributory negligence. While there was testimony tending to prove contributory negligence, neither the plaintiff's petition nor the testimony showed, as matter of law, that they were guilty of such negligence, and therefore that issue was a question of fact to be passed upon by the jury, and the burden of proof rested upon the defendant in that regard. Railway Co. v. Shieder, 88 Tex. 152, 30 S.W. 902, 28 L.R.A. 538. But I do not assent to all that is said in the majority opinion on the subject of discovered peril, and believe that the court erred in giving the instruction upon that subject set out in the majority opinion. In the entire domain of law it is doubted if any other subject has been the occasion of as much confusion, uncertainty, and conflict of decision as the subject of contributory negligence. Mr. Beach in his work on that subject says that Davies v. Man, referred to in the majority opinion, is, to a large extent, responsible for the condition referred to. Space will not permit a reproduction of his entire criticism of that case, but it concludes as follows: "To this extent there is no objection to the doctrine in Davies v. Man. So far as it teaches the principle that remote causes are not to be regarded, that only when the plaintiff's negligence is a proximate cause will it bar his action, and that contributory negligence is no defense to an action for willful negligence, it is a sound authority. But it does not end there. It is equally an authority for the doctrine of comparative negligence, short of which there is no place to stop if we frankly accept the rule to its full extent. In the earlier cases in Illinois and other states where the doctrine of comparative negligence obtains there is no trace of that doctrine, and it seems clear that it originated in an attempt to adopt and apply the rule in Davies v. Man. In those jurisdictions, where comparative negligence is not the rule, the influence of this case has been to confuse the law and undermine the sound principles upon which it should be based. Its apparent resemblance to the two sound principles which have been referred to, and the rather ingenious, but really clumsy, way in which the fallacy is concealed, have enabled it to pass current; but, until the falseness of its reasoning and statement are recognized and its authority is distinctly repudiated, the doctrine of contributory negligence is in peril." In another place the author states that the decision rendered in Davies v. Man cannot be sustained in reason upon any other theory than the doctrine of comparative negligence, which doctrine obtains in only a few of the American states, and has been expressly repudiated in this state in McDonald v. I. G. N. R. R. Co., 86 Tex. 1, 22 S.W. 939, 40 Am. St. Rep. 803, in which it was held that, although the defendant may have been guilty of gross negligence, ordinary negligence on the part of McDonald, if it was a proximate cause of his injury, would defeat any right of recovery.

It has long been well settled that the doctrine of contributory negligence is a part of the common law, and the authorities, with a few exceptions, agree that when the injured party has himself been guilty of negligence, which was a proximate cause of the injury, he cannot as a general rule recover of the negligent defendant compensation for such injury. Difference of opinion may exist as to the reason upon which that doctrine is founded, but the doctrine itself is well settled. In the McDonald Case, just referred to, it is in effect held that it rests upon the proposition that the law will not permit a party to recover from another what would constitute compensation for his own negligent misconduct, and many authorities rest it upon the same ground of public policy.

The Supreme Court of this state, as well as some other courts, has allowed one exception to the rule referred to, and that exception, and the reason upon which it is founded, is well and clearly stated by Mr. Justice Denman in T. P. Ry. Co. v. Breadow, 90 Tex. 26, 36 S.W. 410. Breadow, while walking on a railroad track, was struck and injured by a moving engine; and, in dealing with the question referred to, Judge 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, so 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." It will be noted that the court held that in the class of cases referred to the defense of contributory negligence will not be allowed for reasons of public policy founded upon principles of humanity for the protection of human life and to prevent injury to persons negligently exposing themselves to peril. It is well settled that, in order to constitute contributory negligence which will prevent a recovery, such negligence must have been a proximate cause of the injury; but it will be noted that in the Breadow Case the court does not rest its holding upon the proposition that, in the circumstances referred to, Breadow's negligence would not be a proximate cause of his injury. The sole and only reason there assigned for the doctrine is public policy, for the prevention of physical injury to human beings and if that be true, and the doctrine of discovered peril rests upon that reason alone, then it cannot apply when no personal injury has been inflicted, and the plaintiff seeks to recover for injury done to inanimate property only. However, in my opinion, the question referred to has already been decided by the Supreme Court in so far as this class of cases is concerned in Martin, Wise Fitzhugh v. Ry. Co., 87 Tex. 117,26 S.W. 1052. In that case the plaintiffs sued to recover upon facts quite similar to those involved in this case. There, as in this, the defendant charged that the plaintiffs were guilty of contributory negligence in placing their cotton near the railroad track and failing to cover or otherwise protect it from sparks emitted from passing engines, and the trial court instructed the jury upon that subject as follows: "If you believe from the evidence that the plaintiffs or their agents or employés placed plaintiffs' cotton where it was burned, and if plaintiffs or those persons who had charge of the cotton for them at the compress did not cover or otherwise protect such cotton from sparks emitted from passing engines, and if you find that the placing of such cotton at the place where it was burned, and so leaving it there uncovered, was such an act of omission as a person of ordinary prudence would not have done in view of the probable damages of fire from passing engines, if such damage was probable, and if you further find from the evidence that such placing of the cotton there and leaving it uncovered was a proximate cause, which, concurring with the negligence of the defendant, if you find the defendant was negligent, produced the fire which damaged the cotton, then the plaintiffs cannot recover, no difference how negligent in the matter you may find the defendant to have been." Error was assigned upon that charge, and the Court of Civil Appeals certified to the Supreme Court these questions concerning it: "Is this charge a proper presentation of the law of the case? Was such charge on the weight of the evidence? Was it proper in such charge upon contributory negligence in such a case to direct the jury, under the state of facts given, ``then the plaintiffs cannot recover, no difference how negligent in the matter you may find the defendant to have been'? Is it proper in this class of cases where a recovery is sought on the ground of negligence, and contributory negligence is alleged as a defense, to apply the rule that contributory negligence by the plaintiff will be an absolute defense, no matter how negligent in the matter the defendant may have been. If the railway company knew of the situation of the cotton, and by the exercise of ordinary care could have avoided setting fire to it and destroying it, would the fact that it was negligence on the part of the compress company to place the cotton in that position, uncovered, permit a recovery against the railway company?" And, in deciding those questions, the Supreme Court, speaking through Chief Justice Stayton, said: "The jury had been clearly instructed as to the degree of care necessary to be used by the respective parties, and as to the effect of contributory negligence on the right of plaintiffs to recover, and in view of the relation of the compress company to the cotton and to the plaintiffs, the negligence of that company is to be imputed to plaintiffs. Duggins v. Watson, 15 Ark. 126 [60 Am.Dec. 560]; Simpson v. Hand, 6 Whart. [Pa.] 321 [36 Am.Dec. 231]; Broadwell v. Swigert, 7 B. Mon. [Ky.] 39 [45 Am.Dec. 47]; Ins. Co. v. Austin, 69 N.Y. 482 [25 Am.Rep. 221]; Railway Co. v. Goddard, 25 Ind. 197; Puterbaugh v. Reasor, 9 Ohio St. 487. To hold that the knowledge of the railway company of the situation of the cotton would fix liability on it, if its employés failed to use ordinary care for its protection, although the compress company, the representative of plaintiffs, knew the same fact, and also failed to use ordinary care in view of the surroundings, would be, in effect, to hold that the railway company was under obligation to use greater care for protection of the cotton against fire than were its owners. Such is not the law. The compress company probably thought the cotton safe at such a distance from the railway, even though uncovered; and, if the railway company knew that such was its condition, might it not rely upon the judgment of those to whose care plaintiffs had intrusted it? If the railway company should have apprehended danger, and therefore have used greater care, what was the duty of the plaintiffs under the circumstances? There is, however, a class of cases in which, although one person has been negligent, it becomes the duty of another to avoid inflicting injury upon him, after discovering his danger, if this can be done by the exercise of such care as is then practicable, and failure in such cases will fix liability. This class of cases embraces those in which exposure to danger is known and imminent. Such cases have been often considered by this court. Railway v. Sympkins, 54 Tex. 615 [38 Am.Rep. 632]; Railway v. Richards,59 Tex. 377; Railway v. Evans, 71 Tex. 369 [9 S.W. 325, 1 L.R.A. 476]; Railway v. Weisen, 65 Tex. 447; Artusy v. Railway, 73 Tex. 195 [11 S.W. 177]; McDonald v. Railway [86 Tex. 1] 22 S.W. 944 [40 Am. St. Rep. 803]. The facts on which the questions certified are predicated do not, however, bring this case within that class of cases, and the ordinary rule in reference to the effect of contributory negligence must be applied. Had the facts brought the case within the class before referred to, then so much of the charge as instructed the jury that plaintiffs could not recover if their negligence was a proximate cause of the injury, ``no difference how negligent in the matter you may find the defendant to have been,' would have been misleading; but, under the facts, the rule of law by which the jury should have been governed was in this respect correctly stated. It is not perceived that the charge was upon the weight of evidence, or that it was subject to any of the objections suggested in the question certified."

In that case the court certainly undertook to lay down the rule of law which should govern in cases of this class when a defendant has discovered the danger to which the plaintiff's property is exposed, because the court was specifically requested to decide whether it was proper in such a case to instruct the jury that contributory negligence by the plaintiff would be an absolute defense, no matter how negligent the defendant may have been, and that was followed up with the question asking the court to declare what would be the rule if the defendant knew of the situation of the cotton, and, by the exercise of ordinary care, could have avoided setting it on fire and destroying it; and the court said: "To hold that the knowledge of the railway company of the situation of the cotton would fix liability on it, if its employés failed to use ordinary care for its protection, although the compress company, the representative of the plaintiffs, knew the same fact, and also failed to use ordinary care in view of the surroundings, would be, in effect, to hold that the railway company was under obligation to use greater care for protection of the cotton against fire than were its owners. Such is not the law." The court, then, after some further discussion of the question, states that there is a class of cases in which, although one person has been negligent, it becomes the duty of another to avoid inflicting injury upon him after discovering his danger, if this can be done by the exercise of such care as is then practicable, and failure in such cases will fix liability; and it is stated that the class of cases referred to embraces those in which exposure to danger is known and imminent, and as illustrating that doctrine six cases are cited, in all of which recovery was sought for personal injuries. But, if the doctrine of discovered peril should be extended so as to include inanimate property, I do not believe the facts of this case disclose such known and imminent peril as would render that doctrine applicable. In most of the cases in which that doctrine has been announced, the injured party was upon the railroad track, and was injured by being struck by a passing engine. When a person is so situated, and it becomes apparent or reasonably probable to those who are operating the engine that he will not get off the track, then the danger becomes known and imminent, because it is absolutely certain that, if he remains on the track and the engine strikes him, he will be seriously injured. But there is no such certainty that an engine running past a nearby platform upon which baled cotton is stored will set fire to the cotton, although sparks may escape from the engine; that result may or may not happen.

As to the question of proximate cause, the court instructed the jury, in effect, that, in order for the plaintiffs' negligence to bar a recovery, it must have been a proximate cause of the injury, and thereafter the court gave the charge set out in the majority opinion, telling the jury, in effect, that the plaintiffs' contributory negligence would not prevent their recovery if the cotton was in imminent danger and the defendant's employés in charge of the engine discovered the danger, and could, by the exercise of ordinary care, have avoided the injury. According to the language used in that charge, it is fair to assume that the jury reached the conclusion that although the plaintiffs may have been guilty of negligence in permitting their cotton to remain exposed and unprotected upon the platform, and although such negligence may have been a proximate cause of the injury, still they could recover if the defendant's employés, knowing the situation of the cotton and the other surrounding circumstances, could have prevented the injury by the exercise of ordinary care. If the plaintiffs were guilty of negligence in permitting their cotton to remain upon the platform near the railroad track, with the lint exposed, and without covering it or otherwise attempting to protect it from sparks which might be emitted by passing engines, then, while such negligent conduct on their part was an omission, still, it was continued up to and existed at the very time the cotton caught fire, and there are numerous authorities that hold that such a negligent omission constitutes a proximate cause. The plaintiffs alleged in their petition that the platform upon which the cotton was located was in 2 or 3 feet of a switch track belonging to the defendant, and that 20 feet west of that track was the defendant's main track, and that defendant was guilty of negligence on the occasion in question on account of the fact that it negligently ran an engine upon the tracks referred to, and negligently permitted sparks of fire to escape therefrom.

The proof shows, and it is perhaps a matter of common knowledge, that a locomotive engine cannot be run by steam generated by coal without some sparks of fire escaping therefrom. Unless there is a draft, the coal will not burn, and, when there is a draft, it will carry sparks out with it. The spark arresters which are used upon all properly equipped engines are so constructed as to prevent the escape of large, but they do not prevent the escape of all, sparks; and therefore, no matter how carefully an engine is handled, some fire will at times escape therefrom. It is also a matter of common knowledge that lint cotton is very combustible; and whether or not plaintiffs were guilty of contributory negligence in leaving their cotton exposed upon the platform nearby railroad tracks upon which they should have anticipated that engines would be run, and whether or not such negligence was a proximate cause of the cotton's being destroyed by the fire which escaped from an engine, are questions of fact which should be submitted to and determined by the jury. Such, in effect, was the ruling of the Supreme Court in T. P. Ry. Co. v. Levi Bro., 59 Tex. 674, and Martin, Wise Fitzhugh v. Ry. Co., supra.

It is important to keep in mind the distinction between willful and negligent conduct. When an act is willfully done for the purpose of injuring another, the latter's negligence, although it be a proximate cause of the injury, is no defense; but if the defendant's wrongful conduct is not willful — that is to say, is not committed for the purpose of injuring the other party — but is an act of negligence only, then, as a general rule, contributory negligence is a defense; and it is clear that this case belongs to the latter class. The majority opinion seems to stress the fact that the law of negligence is founded upon the nonperformance of a duty, and it seems to be argued that, because it was held in the Breadow Case that the discovery of the impending danger placed upon the defendant a new duty, therefore contributory negligence was not a defense. In reply to that argument is is proper to say that contributory negligence is also founded upon the failure of the injured party to perform a duty he owes to himself, and the law does not deny him the right to recover upon the ground that because of his negligence the other party was not in fault. Conceding the existence of the other party's failure to perform a duty to him, the law refuses to afford redress to the injured party when he is also guilty of negligence which co-operated in causing the injury, because to do so would be permitting him to recover for an injury caused, in part, by his own wrong. While it may have been once supposed that the Breadow Case, and others of the same class, established the proposition of law that a defendant's knowledge of the fact that the injured party was in imminent peril would require such person to exercise more than ordinary care to prevent the threatened injury, that belief was dispelled by S. A. A. P. Ry. Co. v. Hodges, 102 Tex. 524, 120 S.W. 848, where it was held that the degree of care required of those operating engines and discovering a person in peril in its path is that of ordinary care, or such care as persons of ordinary prudence would use under similar circumstances. It was said in that case that a knowledge of such imminent peril would require the exercise of a great amount of care and diligence to avert injury, because it is obvious that under such circumstances a person or ordinary prudence would exercise such amount of care and diligence in order to prevent injury to the party in peril. But it was there distinctly held that the fact of discovered peril did not change the rule of law in that respect.

It also seems to be held in the majority opinion that knowledge of the danger would have the effect of rendering the plaintiff's negligence the remote, and the defendant's negligence the proximate, cause of the injury. The same thing has been said by other courts in other cases; but the writer fails to see what bearing the knowledge of either or both parties could have in determining the question of proximate cause. A proximate cause is any act or omission which contributes directly to the injury complained of, and but for which such injury would not have occurred. A hunter may shoot at and kill another person, supposing him to be an animal, and yet his act in shooting him is just as much the proximate cause of the other's death as it would have been if the hunter had known that it was a man, and had shot at him for the express purpose of killing him. Hence is seems to me to be illogical and unsound in reason to suppose that what a party may know can have any bearing in determining whether or not a particular act or omission of his was a proximate cause of a given result. Knowledge, or the lack of knowledge, of facts, may be important in determining whether or not a person has exercised due care; but it is difficult to see how it can aid in determining what was the proximate cause of a given result.