57 Tex. 75 | Tex. | 1882
As stated by himself, and witnesses who substantially corroborate his testimony, Chapman’s case against the railway company may be condensed thus: He was driving an empty two-horse wagon, at a slow trot, eastward, on the much traveled public road from Paris to Clarksville, and Avhen about fifty feet distant (in his depositions he had said yards, but on the stand he corrects
The material part of the charge of the court, and all of the charges asked and refused, are copied in full. After stating the nature of the plaintiff’s suit, and of the defense, the court also stated the statutory provisions requiring railroads to erect sign-boards at the crossings of public highways, and on their approach within eighty rods of the crossing to cause a bell to be rung, or a whistle blown, and making the companies liable for all damages that may accrue by reason of their failure to perform this duty. The charge proceeds:
“ 4. I charge you, therefore, that if you believe from the evidence that defendant’s train, in crossing the road known as the Clarksville and Paris road, came in collision with plaintiff’s wagon while plaintiff was attempting to cross the railroad at that point, and thereby injured the wagon and killed one horse and injured plaintiff’s person, and that as the train approached said crossing, a bell was not rung, nor a whistle blown, as required by law, and that defendant, at the time, had no sign-board a,t the crossing as the law demanded, and that but for the neglect of the defendant in not providing said sign-board, and not ringing the bell or blowing the whistle, as required by law, said collision would not have occurred, you will find a verdict for the plaintiff.
“ 5. If, on the other hand, a collision occurred between defendant’s train and plaintiff’s wagon at the point above indicated, and if no sign-board was put at the crossing as required by law, and if no bell was rung or whistle blown; and if plaintiff discovered the railroad track and crossing in time to have stopped his team upon the discovery of a passing train; and if, notwithstanding the failure of defendant’s employees to ring the bell or blow the whistle, as it was their duty to do, plaintiff, by the use of such diligence and care as a man of ordinary prudence and foresight would exercise under such circumstances, could have discovered the approaching train in time to avoid the collision; and if, as a matter of fact, the failure to ring the bell or blow the whistle did not throw plaintiff off his guard or cause him to relax his diligence, then I charge you that
“ 6. If defendant’s employees rang the bell or blew the whistle eighty rods from the crossing, and continued the signal until it was passed, and if plaintiff discovered that the railroad crossing was in his front in sufficient time to have stopped his team until the train had passed, then defendant is not liable for any damage that ensued from a collision, if any, unless defendant’s employees discovered plaintiff on the track or so near thereto that he could not avoid the collision in time to stop the train before reaching him, and failed to stop it.
“ 7. If defendant’s employees rang the bell or blew the whistle as ■required by law, and plaintiff saw the railroad crossing in time to have stopped his team, and defendant’s employees did not discover plaintiff in a position of danger from which he could not extricate himself before it was too late to stop the train, so as to avoid the collision, defendant is entitled to a verdict. So, also, if defendant’s employees did not ring the bell, or whistle, as required by law, and such failure did not throw plaintiff off his guard, and if defendant, by the use of the care and diligence defined above, could have discovered the train in time to have stopped his team, and also saw the crossing in such time, and defendant’s employees did not discover plaintiff in a position of danger before it was too late to stop the train, defendant is entitled to a verdict.
“ 8. If the conductor of the train, before reaching the crossing, saw plaintiff driving along the road sufficiently far from the crossing to stop his team before the train reached it, he had the right to conclude that plaintiff would stop before reaching the crossing, and his failure to stop the train would not be such negligence as to render the defendant liable, unless he had time to stop the train after he saw that plaintiff was on the track or so near thereto that he could not avert the danger if the train moved on.”
The following charges asked by defendant were refused:
“1st. The failure of the defendant to erect a sign at the crossing of ■ the traveled road, over its track, will not render it liable for damages, arising from the collision there, if plaintiff knew, or by ordinary care might have known, that the railroad track was there.
2d. The failure to ring the bell or sound the whistle on defendant’s train will not render it liable for damages arising from a col
3d. One traveling upon a public highway, approaching a railroad crossing over a railroad track, is required to use ordinary care to ascertain the approach of trains; a failure to do so will prevent a recovery for injuries which are caused by such failure.
4th. If you believe from the evidence that the plaintiff discovered the railroad track when he was at a point out of danger by the approach of the cars, and from which he could have discovered the approaching train in time to prevent a collision, then the failure of defendant to erect a sign, at the crossing of the railroad and the public road would not render it liable for damages occasioned by a collision caused by plaintiff’s negligence.
5th. If you believe from the evidence that defendant’s, employees sounded the 'whistle or rung the bell eighty rods from the crossing, and continued either or both to the crossing, you will find for defendant.
6th. If you believe from the evidence that defendant’s employees on the train with which plaintiff collided did not, on approaching the crossing of the Paris and Clarksville road, blow the whistle or ring the bell as required by law, but that if plaintiff had used ordinary care and prudence he could have discovered the approaching train in time to avoid a collision, and that if plaintiff had used such care the injury would not have occurred, you will find for defendant.
7th. If you believe from the evidence that the plaintiff, on approaching the crossing of said railroad, did not look for approaching trains, and that if he had done so the injury would not have occurred, he cannot recover, and you will find for defendant.
8th. If you believe from the evidence that the plaintiff knew of the approach- of defendant’s train when he was out of danger from the same, and that he drove up on defendant’s track knowing the train was near by, and that if he had not done so the injury would not have occurred, he cannot recover, and you will find for defendant.
9th. If you believe from the evidence that plaintiff knew of the approach of defendant’s train at a time when he could have prevented the collision, but that his team became unmanageable and rushed on the track, by which means the collision, occurred, you will find for the defendant.
10th. It was the plaintiff’s dutjq upon discovering the approaching train, if not then on the track, to have used all proper care to prevent a collision; and if from the evidence you believe that he did
11th. Defendant’s employees, in operating its train, had the right to presume that the plaintiff, in traveling upon the highway, approaching a crossing upon defendant’s railroad, upon being aware of the near approach of a train, would stop his team in time to prevent a collision; and they -were not required by law to stop the train to allow his team to cross, when he was aware of the approach of said train.”
1st. The first paragraph of the charge is objected to because “ it directs the jury to find for the plaintiff, if the neglect to erect a sign-board, ring a bell, or sound a whistle, was the cause of the collision, without calling attention to those acts of the plaintiff that would defeat his recovery.” In the next paragraph, however, and in a manner plainly evincing the intention of the court that the two paragraphs should be taken together, the court proceeds to give the jury all needful instruction on this very point. There is "no reason to apprehend that the jury failed to consider these two paragraphs of the charge in connection.
In the same assignment of error appellant complains of the refusal of the second, sixth and tenth instructions asked. These instructions in substance require of plaintiff the use of ordinary care and prudence, notwithstanding the absence of the required signals, to discover an approaching train, and when discovered, to avoid a collision. We think their substance is fully and clearly embodied in the fifth paragraph of the charge as given.
2d. That part of the fifth paragraph of the charge which submits to the jury the question of fact whether the failure to ring the bell, or blow the whistle, did not throw plaintiff off his guard or cause him to relax his diligence, is objected to because it is said there was no evidence tending to show that'such failure did throw him off his guard. There was evidence tending to show that he discovered the approaching train too late and that the signals had not been given as required; and from this evidence the jury were certainly at liberty to infer that had the signals been properly given, plaintiff would have been put on his guard and would have sooner discovered the approaching train. See Thompson on Neg., Vol. 1, p. 420, citing Pa. R’y Co. v. Ogier, 35 Pa. St., 71.
3d. So it is complained of varitius paragraphs of the charge, that they submit to the jury the question whether defendant’s employees discovered plaintiff on the track, or so near thereto that he could not extricate himself from danger, in time for them to have stopped
4th. In the seventh instruction refused, the court was asked to tell the jury to find for defendant, if plaintiff, on approaching the crossing, did not look for approaching trains, and that if he had done so, the injury would not have occurred. There is no statutory rule, or fixed rule of law, prescribing exactly what a party must do who approaches a railroad crossing. If aware of the fact, he is held to use such precautions as a prudent man would resort to under the circumstances. Attempts by the court to prescribe the exact thing to be done would be infringing on the province of the jury and charging on the weight of evidence. Moreover the instruction was rightly refused because it held the plaintiff bound to know when he approached a railroad crossing, when the evidence shows that there was no signal there to notify him, and he was in ignorance of the vicinity of the railroad until within fifty or sixty feet of the crossing.
■ 5th. In refusingdhe eighth instruction asked the court did not err, because there is no rule of law relieving defendant from responsibility if plaintiff’s team became unmanageable and rushed on the track. If the fright of the horses and their unmanageable state were occasioned by the near approach of the train, and that near approach had been occasioned by the failure to give the proper signals, such a rule would seem unreasonable and not sanctioned by authority. 1 Thompson on Neg., p. 420, and cases cited; Prescott v. East. R. Co., 113 Mass., 370; Pollock v. East. R. Co., 124 Mass., 158; R. R. Co. v. Ogier, 35 Pa. St., 71.
Our examination of the charge satisfies us that it is a fair presentation of the law applicable to the case. Notwithstanding the absence
Affirmed,
[Opinion delivered May 2, 1882.]