H. & T. C. R'y Co. v. Sympkins , 54 Tex. 615 ( 1881 )

Gould, Associate Justice.

On the 10th of April, 1873, at noon, W. J. Sympkins, lying in a state of insensibility on the road-bed of the Central Railway, at a point where there was a long curve, and about 190 steps from a public crossing, was run over by the cars, whereby he lost his right arm, and was otherwise bruised. On his behalf, it is claimed that whilst walking on the railroad track he was providentially stricken down by a fit; that at the point on the curve where he fell, the engineer, by keeping a proper look-out, could have discovered him at about 300 steps distance, in ample time to have stopped the train and avoided the accident. On the part of the railway company, it is asserted that Sympkins’ fit was nothing more than one of intoxication; that at all events he was negligent originally in walking on the track, and was wrongfully there; that he was lying outside of the rails in such a way that the engineer neither could nor did discover him in time to avoid running over him, he having immediately used every means to stop the train.

In its charge the court told the jury: “If the evidence satisfy you that the engineer could, by the use of due and proper care and attention, have discovered the plaintiff on the track in time to have stopped without running over him, then his not doing so is such negligence as will render defendant company liable to plaintiff.”

The defendant asked sundry charges, embodying the proposition, that, unless the engineer actually saw Sympkins a sufficient length of time and distance to stop the train and prevent the injury, the company was not hable; and denying that, as to persons wrongfully on the track, the law imposed on the railroad any duty to keep a look-out, or any liability except for “willful or wanton negligence on the part of its agents.” The following charge was also amongst those asked and refused:

“It is in evidence before you that the plaintiff had on the same day taken one or more drinks of liquor, and that he never before that day, nor since, has had a fit. It is your peculiar province to determine whether or not that fit was a fit of intoxication. If he was in a fit of intoxication, or drunk, at the time of the accident, and the accident was occasioned in any degree by that fit of intoxication or drunkenness, then and in that case the defendant is not hable, and the plaintiff is not entitled to recover, unless the accident happened and was occasioned by the wanton or willful negligence of the engineer, or those in charge of the train.”

The plaintiff recovered a judgment, and the questions here presented arise mainly on the charge. We do not assent to the proposition that a railroad company may not become hable to one who is run over and injured by reason of the want of watchfulness of its servants, although such person may have been originally a trespasser on the track. If a party be wrongfully on the track under such circumstances, or being there, acts in such a way as to be himself a proximate cause of his own injury, he will be precluded from recovery on grounds of pubhc pohcy, as being himself guilty of contributory neghgence. Although the company’s agents may have failed in proper watchfulness, the injured person is regarded as being himself too directly a cause of the injury to be allowed to complain. It is not that no wrong has been done by the company in the negligence of its agents, but that the injured party is precluded from complaining of that wrong.

A man goes upon the railroad track at a time and place when no danger is nigh, and whilst there, by some accident or providential cause becomes insensible, and so remains perhaps for hours, until the time for a train comes round.

Although he originally goes on the track wrongfully, it is under circumstances threatening no direct injury, nor, being on the track, does he do anything “positive or negative to contribute to the immediate injury.” Baltimore & O. R. R. Co. v. State, use of Trainor, 33 Md., 554. If the engineer on the approaching train keep that look-out which is required of him at all times, not only to secure the safety of the train, but to avoid injury to any animal or person on the track, this person lying there in open view must be discovered. Not to discover him is, under the circumstances, negligence, and that negligence is the proximate cause of the injury; whilst the negligence of the party in going on the track is only a remote cause. Between that original act of negligence and the injury has intervened a new agency, a providential dispensation, breaking the causal connection. Brandon v. Gulf City Cotton Press, etc., 51 Tex., 121. Here there is not such contributory negligence as prevents the party from recovering for an injury caused by the negligence of the company’s agent, and if a recovery be denied, it must be placed on some other principle.

Counsel for appellant cite a number of cases which deny any duty on the part of a railroad company to one wrongfully on the track, and deny any liability for injury to such person caused by anything short of wantonness. On examination, it will be found that in most of these cases the plaintiff either directly contributed to the injury or the negligence established in the defendant’s servants were not the cause of the injury. Take for example two leading cases in Pennsylvania, where this doctrine has been most forcibly asserted. Railroad v. Norton, 24 Penn. St. 469, was a case where the plaintiff had fastened his machinery for sawing wood to the rail of the company’s road, and the court holds “it evident that the imprudence of the plaintiff was the immediate cause of the injury.” R. R. Co. v. Hummell, 44 Penn. St., 378, was a case of injury to a child, in which the only negligence charged was a failure to blow the whistle or give signals on starting. It does not appear from the evidence that this failure was the cause of the injury.

It may safely be asserted that but few cases can be found where a party, not guilty of contributory negligence, and estabhshing an injury which would have have been prevented but for the carelessness of the company’s agents, has been denied a recovery on the ground that the company owes no duty of carefulness to one wrongfully on their track.

In our opinion, there is a distinction between the duty devolving on the owners of land on which there is a dangerous excavation, and that devolving on a corporation invested by law with the extraordinary power of traversing the country with huge cars, whose progress everywhere is necessarily attended with danger. They who place such dangerous machines in motion, should, we think, be required to take precautions against their injuring any one who may happen to be in their pathway. “ The care in conducting any business should be proportionate to its dangerous motion.” Gorman v. Pac. R. R. Co., 26 Mo., 448. The extent of the precautions required of a railroad company depends on all the circumstances. The regulations of railroads exact watchfulness of the engineers, and this rule should operate for the benefit of the public as well as the company.

Authorities are not lacking in support of the position that a “reasonable look-out,” varying according to the . danger, and all the surrounding circumstances, is a duty . always devolving on those in charge of a railroad train in motion. Baltimore & Ohio R’y Co. v. State of Maryland, for use of Hannah Dougherty, 36 Md., 366; Baltimore & Ohio R’y Co. v. State, use of Trainor, 33 Md., 554; Harlan v. St. Louis, Kansas City & N. R’y Co., 2 Thompson on Negligence, p. 439 (64 Mo., 480, and 65 Mo., 22), citing Hicks v. Pacific R. R. Co., 64 Mo., 430. The duty of watchfulness has often been enforced against railroads in cases of injuries to cattle trespassing on their track, and that, too, in the absence of any statutory provision or in cases outside of the statute. Isbell v. N. Y. & N. H. R. R. Co., 27 Conn., 393; Gorman v. Pac. R. R. Co., 26 Mo., 442; Chicago & Ill. R. R. v. Barrie, 55 Ill., 226; Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St., 112. We prefer that fine of decisions holding railroads bound to exercise then dangerous business with due care to avoid injury to others, as correct in principle and sound in policy, and as protecting even a trespasser who is not guilty of contributory negligence. We are inclined, however, to the opinion that the charge given by the court in this case may have led the jury to believe that they could only find for defendants should they think that the engineer “ could not and did not discover plaintiff on the track in time to stop, without running over him.” Read as a whole, especially in connection with its final clause, the charge is not erroneous, and may not perhaps have been misunderstood. We call attention to it, because of our opinion that the watchfulness required depends on all the circumstances, having reference to all the duties of the engineer, and that it is for the jury to say whether, under the circumstances, he not only could, but should have discovered the plaintiff in time to have stopped the train. In other words, that the engineer, had he been exercising that ordinary and proper care which under the circumstances was his duty, would have discovered the plaintiff in time.

But we are of opinion that the court, its attention being called to the subject by a charge, asked by ..defendant, should have given the jury an instruction as to their duty in the event they found that the plaintiff was intoxicated when the accident occurred. Whether he was so intoxicated or not, was under all the evidence an issue of fact for the jury. If they found, as claimed by defendant, that his fit was one of intoxication, the authorities seem to be that “ such conduct is contributory negligence which constitutes a bar to his action for damages.” 1 Thompson on Neg., p. 450, citing Ill. Cent. R. R. Co. v. Hutchinson, 47 Ill., 408; Herring v. Wilmington & Raleigh R. R. Co., 10 Iredell, 402; H. & T. C. R. R. Co. v. Smith, 52 Tex., 178. In such case the injured party would be precluded from recovering for anything short of wanton or willful neglect.

Because of this error the judgment is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered March 29, 1881.]