
    THE TEXAS AND PACIFIC RAILWAY v. CHAPMAN.
    SUPREME COURT,
    AUSTIN TERM, 1882.
    
      RaiProad — Negligence—Action for injury — Charge of court — Signals—Signboard. — Action against a railroad company to recover damages for injuries received by the plaintiff in a collision with a train of cars as he, while traveling in his wagon on a public highway, was attempting to cross the defendant’s track, at a point where the defendant had failed to erect any signboard, and at a time when, the petition alleged, the employees operating such train had failed to blow the whistle or ring the bell, as required by law, and the plaintiff having no notice and no means of knowing of the approach of the train until too late to avoid injury.
    In the charge of the court to the jury trying the cause, one paragraph treated solely of the alleged negligent act of the defendant, but the next paragraph correctly charged the law as to the effect of contributory negligence on the part of the plaintiff.
    
      Held, That the silence of the former paragraph as to such contributory negligence was not error.
    
      Same — -Contributory negligence, — The refusal of the court to give instructions asked by the defendant, on the rule of law as to contributory negligence, is not error, when that subject is fully and correctly covered by the charge already given by the court.
    
      Same. — There being evidence that the required signals had not been given in time, and that the plaintiff had not discovered the approaching train until too late to avoid injury, the jury could properly infer that, had these signals been properly given, the plaintiff would have been put on his guard against danger, and therefore a charge on this point was proper.
    
      Same. — There being evidence that the conductor of the train had seen the plaintiff while he was yet a quarter of a mile distant from the crossing, the defendant could not complain of an instruction that the jury might consider whether or not the train should have been stopped in time to have saved the plaintiff.
    
      Same. — There being evidence that there was no signboard at the crossing,, and that the plaintiff did not know that he was in the vicinity of a railroad until within sixty feet of the crossing, the court properly refused to instruct that the plaintiff ought to have been on the watch for approaching trains, and. that, had he so done, he would not have been injured.
    
      
      Same. — The defendant would not be relieved of liability for the injury because the plaintiff's team, in their fright at the train, became unmanageable and rushed upon the track, if the proper signals were not given in time.
    Appeal from Lamar county
   Gould, C. J.

Opinion by As stated by himself, and witnesses who substantially corroborated his testimony, Chapman’s case against the railway company may be condensed thus: He was driving any empty two-horse wagon, at a slow trot, eastward, on the much traveled public road from Paris to Clarksville, and when about fifty feet distant (in his deposition he had said yards, but on the stand he corrects this and says it was feet), suddenly became aware that he was approaching a railroad crossing — not having previously known that the road crossed any railroad track. The direction of the public road and of the railroad were nearly the same, the approach being gradual, and the crossing oblique; and, on descrying the track and crossing, he (as he himself testifies), turned his head 'and looked west, in the direction of- the: track, and then looked east in advance, and saw nothing. The road at that point was causewayed with poles, was dry and rough, so that the wagon made considerable noise. The wind also was blowing hard from the east, and Chapman says he heard nothing of an approaching train. When he was twenty or thirty feet from the crossing, first one, and then both, of his horses indicating alarm, he again looked west and saw that a train was in fifty or sixty feet of and approaching the crossing. By this time he says that his horses fore feet were just about the railroad track. Lie endeavored to stop them, but says that they were so frightened that he was unable to do so. He then undertook to hurry them across, but before he had cleared the track his wagon was struck and ruined, one horse killed and the other wounded, and he himself severely, and probably permanently, injured. There was no signboard at the crossing, as required by law, and the testimony of several persons living in the neighborhood who saw the collision, is that no whistle was sounded nor was the bell rung until the train, running at the rate of about fifteen miles per hour on an up grade, was in from thirty feet to thirty yards of the crossing. There was a cut and embankment amounting together to from nine to twelve or fourteen feet, reaching within about forty feet of the crossing. There was also a growth of tall weeds on the embankment, and a high fence along the public road. From these causes those witnesses say that Chapman could not see the approaching train sooner than he said he did, unless indeed it were the smokestack and top of the ■cars. From a point much more distant from the crossing they say he might have seen the train, there being then no obstructions. It was a freight train, and the conductor testifies that he was in the caboose in the rear, and saw the plaintiff’s wagon a quarter of a mile from the crossing. He does not state whether he noticed him farther after seeing him or not. The engineer and fireman say they ■did not see him, but that the bell was rung from fifty to one hundred yards before reaching the crossing, and the engineer says that he sounded the whistle when a quarter to a half of a mile off. Witnesses who had examined the locality say that the cut and embankment begin one hundred and eighty-eight feet from the crossing, and were insufficient to conceal an approaching train from one situated as Chapman was, and the employees of the company say that he could have seen the train at distances variously stated from twenty to thirty rods to half a mile.

There was a verdict in favor of plaintiff, and the reversal of the judgment is claimed by appellant because of alleged errors in the •charge of the court as given, and in the refusal of the charges asked.

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 signboards 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 signboard at the crossing, as the law demanded, and that, but for the neglect of the defendant in not providing said signboard, and not ringing the bell or blowing the whistle, as require by law, said collision would not have occurred, you will find a verdict for the plaintiff.

“ 5. If, on the other hand, a collision occured between defendant’s train and plaintiff’s wagon at the point above indicated, and if no signboard was put at the crossing, as required by law, and if' no bell was z-ung 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, plaintzff, 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 failuz-e 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 plaintiff cannot recover, unless yozz find that arter plaintiff got upon the track, or so near thereto that he could not extricate himself from the danger-, and while the train was in position to be stopped, so as to avoid collision, defendant’s agents and servants discovered that he was in that position and failed to stop the train.

“6. If defendant’s employees rang the bell, or whistled, eighty z-ods from the cz-ossing, 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.

“ *1. If defendant’s employees rang the bell or blew the whistle as z-equiz-ed by law, and plaintiff saw the z-ailroad crossing in time to-to have stopped his team, and defendant’s employees did not discover plaintiff in a position of danger from which he could not exti-icate himself before it was too late to stop the train, so as to-avoid the collision, defendant is entitled to a vez-dict.

“ So, also, if defendant’s employees did not z-ing 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 tz-ain 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 avoid danger if the train moved on.” .

The following charges, asked by defendant, were refused:

“ 1. The faiure 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.

2. The failure to ring the bell or sound the whistle on defendant’s train, will not render it liable for damages arising from a collision with the plaintiff at the crossing of a public road, if the plaintiff knew or might have known that the train was approaching in time to have avoided the injury.

“ 3. On 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.

“ 4. 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.

“ 5. If you believe, from the evidence, that defendant’s employees sounded the whistle or rang the bell eighty rods from the crossing, and continued either or both to the crossing, you will find for defendant.

“ 6. 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 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.

“ 1. If you believe, from tbe 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.

8. 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 upon defendant’s track knowing the 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.

9. 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.

“ 10. It was the plaintiff’s duty, 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 not do what a prudent man would have done, and that by such failure the injury occurred, you will find for defendant.

11. 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.”

1. 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 signboard, 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 instructions 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 the approaching train, and when discovered, to avoid a. collision. We think their substance is fully and clearly embraced in the fifth paragraph of the charge as given.

2. 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., 211, p. 4420, citing Pa. R. R. Co. v. Ogier, 35 Pa. St., 71.)

3. So it is complained of various 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 the train, because it is said that there was no evidence to which it was applicable. There is evidence that the conductor, who was in the rear part of the train, saw plaintiff in his wagon a quarter of a mile from the crossing, and whilst the evidence is silent as to whether the conductor continued to notice him, we think it sufficient to make the charge pertinent. Moreover, in our opinion, the charge might properly have gone further, and have submitted, in connection, the question whether defendant’s employees, in the exercise of proper watchfulness on approaching a public crossing, should not have discovered plaintiff on the track, or in danger, in time to have stopped the train. (Railway Co. v. Sympkins, 54 Texas, 622.) In this view of the law the charge is not one of which appellant can complain. In this connection appellant objects to the refusal of first, fourth and eleventh instructions asked. We think, in so far as they are concerned, these instructions were embodied in the charge given.

4. 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, of fixed rule of law, prescribing exactly wbat a party must do wbo 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 courts 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.

5. In refusing the 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 Negligence, p. 420, and case cited; Crescot v. East Railroad Co., 113 Mass., 370; Pollock v. East Railroad Co., 124 Mass., 158; Railroad Co. v. Ogeir, 35 Pa. State., 71.) Our examination of the charge satisfies us that it is a just presentation of the law applicable to this case.

Notwithstanding the absence of the required signboard, plaintiff, after actually discovering the crossing, was required to conduct his further approach in such a’ manner as a man of ordinary prudence would use under the circumstances. If his failure to discover the approaching train in time to avoid the danger, and his want of promptness to avoid the danger when discovered, were not caused or induced by the failure of the railroad employees to give the required signals, but were caused by plaintiff’s own want of proper care, then the defendant-was not responsible for the collision, unless, indeed, the railroad employees were remiss in not endeavoring to stop the train when they saw, or should have seen, plaintiff’s danger.

This, we think, is the law of the case, and so far as affects the company’s right to a verdict, was clearly stated in the charge.

The judgment is affirmed.  