No. 637. | Tex. | Mar 7, 1898
On the 24th day of November, 1888, N.R. Roberts, riding a mule, left the public road, where it crossed defendant's track in Queen City on a level with such track, and rode on the track, which gradually increased in elevation, about one hundred and seventy yards, towards Atlanta, where he reached a bridge and then turned and rode back a few yards to a path which crossed the track which was at that point about twelve feet high, and there dismounted, and was engaged in the vain endeavor to lead his mule down the embankment, when defendant's regular passenger train, coming from Atlanta to Queen City, passed over the bridge and struck and killed him and his mule. The wife and children sued defendant to recover damages for his death, basing their claim upon the grounds: (1) that defendant was guilty of negligence in running its train at a great rate of speed over a portion of its track which was much used as a road, and in failing to ring the bell or blow the whistle as required by law in approaching said road-crossing, and in failing to discover Roberts in time to avoid injury to him; and (2) that defendant was guilty of negligence in failing to use all reasonable means within its power to stop the train after it discovered Roberts' peril. Defendant pleaded, (1) general denial, (2) contributory negligence on part of Roberts, and (3) that defendant after discovering Roberts' peril used all means within its power to protect him. *537
Upon the verdict of a jury the trial court rendered judgment for plaintiffs, which was affirmed by the Court of Civil Appeals.
The Court of Civil Appeals in its opinion treated the question of contributory negligence as being material, and held that the evidence did not establish such negligence as a matter of law. This court was inclined to differ with them upon the latter point, and granted defendant's application for writ of error upon the assignment therein complaining of the refusal of a charge asked by it as follows: "In this case the jury are charged that the evidence shows that Roberts was guilty of negligence in going on the railroad with his mule and remaining there until the train struck him, and you will therefore find for the defendant unless you find that the engineer saw Roberts, and saw that he was in peril in time to have stopped the train and failed to do so."
Upon a careful consideration of the record we have reached the conclusion that the question as to whether the evidence showed Roberts guilty of contributory negligence as a matter of law need not be determined in this case, for the reason that the trial court in its charge did not authorize the jury to find for plaintiffs unless they found that defendant's employes operating the train knew of Roberts' peril and could have avoided injuring him by the exercise of reasonable care, and also charged them to find for defendant if from the evidence they believed that such employes "after they had discovered and knew of his peril and danger did use that degree of care, prudence and diligence, which a man of ordinary prudence would have used under like circumstances in employing all the means and appliances in their control and at their command to stop said train and could not do so, before it struck and killed said Roberts." These charges were more favorable to defendant than the one refused, and made its liabilty depend upon the existence of two facts, viz: (1) Its discovery of Roberts' peril, and (2) its subsequent failure to exercise reasonable care to avoid injuring him. Therefore there was no error in refusing the special charge.
Finding no errors in the record of which defendant can complain the judgment will be affirmed.
Affirmed.