Brown v. Griffin
71 Tex. 654
Tex.
1883
Check Treatment
Gaines, Associate Justice.

The appellee was injured by an engine on the railroad of the Texas & Pacific Railway Com*658pany, of the property of which the appellant is receiver. This action was brought to recover damages for the injury. The accident occurred in Atlanta, which was shown to be an incorporated town, at a point where a street crossed the track of the company. The depot building stands within a few feet of this street, upon a sidetrack. The main track is beyond this side track from the depot building. The road at this place, as shown by the map in evidence, runs east and west. The appellee, desiring to cross the railroad, came down to the depot building and passed west along its platform and along the side track to the street, and found that the crossing was completely obstructed by a long train of freight cars standing upon the main track. He halted at the edge of the side track, as he testified, near the end of the cross ties, and looked westward for an engine on that track, but saw none. He remained where he had stopped for a minute or minute and a half, when he was struck by the outer edge of the pilot of an engine coming from the east, and thrown down and injured. At the time he was struck his bark was towards the east. This is substantially plaintiff’s own testimony. The evidence was conflicting as to rate the engine was running. A witness for plaintiff gave the rate of speed as being from six to eight miles per hour, while one of the defendant’s employes stated it was four, and another six miles. The engine was operated by a fireman, the engineer being at dinner. 3STo bell was. rung or whistle blown.

The general charge of the court was very full and favorable to the- defendant. The jury were very pointedly told that it was the duty of the plaintiff, upon reaching the crossing, to look and listen for approaching trains; and that if one stops so near a railroad track as to be struck by an engine, without looking in both directions and listening, and is thereby injured, he could not recover, although the persons in charge of the engine may have been negligent. The jury were also told that ‘‘the law does not permit a person to rely upon an approaching engine to give him warning by signals.” In short, the charge presented the theory of contributory negligence under every possible phase of the testimony, in so clear and emphatic a manner that further instructions were neither necessary nor proper.

It follows from this that the court did not err in refusing the instructions asked by appellant. This disposes of his second and third assignments of error.

*659We think that there was no error in charging the jury that it was the duty of the persons in charge of a railway train to ring the bell or blow the whistle at a distance of eighty rods from the place where any railroad crosses any street in a town, and to continue such ringing or blowing until the train shall have crossed the street. The statute requires this, and we do not concur in the proposition of appellant, that because the street was obstructed by a standing train, this duty was not obligatory upon those running a train upon the side track. The statute makes no exception, and we see no reason for making the exception claimed by appellant. The reasons for requii ing the signal may not be so strong where the street is obstructed and the side track is left open, as where both are unobstructed; yet the same reason exists in both cases. It is the avoidance of danger to persons passing along the street and over the track, that law seeks to secure. The danger exists in both cases, and the difference is only in degree.

It is complained that the court erred in charging in effect, that the plaintiff could recover although he put himself in a position of danger, if the person in charge of the engine saw him in time to warn him of danger by giving the signal and failed to do it. It is claimed that there was no evidence to warrant this charge. Upon the theory that the jury were bound to believe the fireman, who swore he did not see plaintiff, this may be true. But the proof is, that he was upon the engine operating it, and that there was nothing in front of it to obstruct his view of the track. The jury might have presumed from this that he did see the plaintiff. Is the court bound to assume that this presumption is wholly destroyed, because a witness swore to the contrary F It may be that the weight of the evidence is clearly against the theory that the fireman saw the plaintiff; yet we can not say that the proposition presented was so manifestly without evidence, that it was calculated to mislead the jury.

It is lastly assigned that the verdict is unsupported by the evidence, in this : that the proof shows that the plaintiff was guilty of contributory negligence. It is clear that but for the negligence of appellant’s servant, the injury would not have occurred; and we can not say that the jury were not warranted in concluding that contributory negligence was not proved. The question of plaintiff’s negligence was one of fact to be determined in the light of all the circumstances. Ordinary pru*660dence demands a degree of care proportionate to the apparent danger. The plaintiff, when he was struck, had just passed along the side track for a short distance, and no engine or train was there. He looked in the opposite direction. It may be conceded that the presumption is that he did not look behind him. Why he did not, he does not say. It may be, that there being no train upon the portion of the track near which he had passed, he did not think it necessary. There was no hell ringing or whistle blowing. He did not stop upon the track, but at a point where, upon a moment’s warning, he could have removed himself from danger. Under these circumstances, this court can not say the verdict of the jury is against the evidence. It was a matter peculiarly within their province, and the court below having approved the verdict, it will not be disturbed here.

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

Affirmed.

Opinion delivered November 2, 1883.