
    TRINITY & B. V. RY. CO. v. BLACKSHEAR.
    (No. 2734.)
    (Supreme Court of Texas.
    Jan. 13, 1915.)
    Raileoads (§ 364) — -Injury Near Track-Negligence — ANTICIPATION OE RESULT. _
    _ A railroad, negligent in allowing spikes holding rails to be loose or to lie on the ground, could not foresee that a rapidly moving' train would pick up a spike and hurl it 50 feet into a field, and was not liable to plaintiff, struck and injured thereby; though it would he liable for injury proximately caused by such negligence which, in the exercise of reasonable diligence, it might have foreseen would result therefrom.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1252, 1253; Dec. Dig. § 364.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by C. M. Blackshear against the Trinity & Brazos Valley Railway Company. Judgment for plaintiff was affirmed by Court of Civil Appeals (161 S. W. 395), and defendant brings error.
    Judgment reversed, and judgment entered for defendant.
    N. H. Lassiter and Robt. Harrison, both of Ft. Worth, and Morrow & Morrow, of Hillsboro, for plaintiff in error. H. B. Porter, Walter Collins, and Shurtleff & Cummings, all of Hillsboro, and W. F. Ramsey and C. L. Black, both of Austin, for defendant in error.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   BROWN, C. J.

The plaintiff in error constructed its road through a farm in Hill county (the name of the owner is not Important), and was operating its trains thereon at the time the injury complained of occurred. There is evidence from which a jury might conclude that within the limits,of the said farm the spikes which held the rails to the ties of the railroad track were in many instances loose, and in some instances they were lying upon the ground.

Defendant in error, Blackshear, was employed by the owner of the farm as a hand, and was engaged in plowing at the time at a point near to the railroad track. A freight train upon the railroad track passed by him at unusual rapid speed, and just as it passed something struck Blackshear in the side and caused the injury complained of. Blackshear was at the time about 50 feet from the railroad track. From the injury received in his side Blackshear was confined to his bed and room for about two weeks, and, when he was able to do so, he went back to the place at which he was plowing and where he was standing at the time he received the blow, and he found near there on the ground an iron spike such as was used on the railroad track, and he believed it was the spike that struck him and caused his injury.

The spike being negligently permitted to be upon the track of the railroad, or loose in the ties, the railroad company would be responsible for injury proximately caused by such negligence which, in the exercise of reasonable diligence, the railroad company might have foreseen might result therefrom. Railway Co. v. Bigham, 90 Tex. 223, 38 S. W. 162.

In the case cited, Chief Justice Gaines, in his . usual thorough manner, examined and discussed this question, and announced the rule to be:

“But we are not prepared to hold that in no case can the original cause of the injury be deemed the proximate cause, where an independent and disconnected agency has supervened and brought about the result. The fact of the intervention of an independent agency, it occurs to us, bears more directly upon the question whether the injury ought, under all the circumstances, to have been foreseen; and, where this latter fact appears, we think that the original negligent act ought to be deemed actionable. In Seale v. Railway Go., 65 Tex. 274, 57 Am. Rep. 602, Chief Justice Willie says: ‘If the intervening, cause and its probable or reasonable consequences be such as eOuld reasonably have been anticipated by the original wrongdoer, the current of authority seems to be that the connection is broken.’ It follows that, in our opinion, the question of probable cause ought to depend upon the further question whether a reasonably prudent man, in view of all the facts, would have anticipated the result — not necessarily the precise actual injury, but some like injury, produced by similar intervening agencies.”

In the Bigham Case the railroad company was negligent in not providing a safe latch to the gate of a lot in which eatUe were placed, and was held liable for the injury to cattle which broke through the gate and escaped, but was held not to be liable for injury to a man who was attempting to prevent the escape by guarding the gate. The escape of the cattle should have been foreseen as a consequence, but the presence of the man at the gate could not have been anticipated; therefore the injury to him could not have been anticipated as a result of the negligence. In this case it was negligence to permit spikes to lie upon the track, and if Blackshear had been lawfully on or near the track in discharge of a duty, and had received his injury, there might be liability. In support of the case cited, we add the following: Sjogren v. Hall et al., 53 Mich. 274, 18 N. W. 812; American Brewing Ass’n v. Talbot, 141 Mo. 674, 42 S. W. 679, 64 Am. St. Rep. 543; 3 Labatt’s Master and Servant, §§ 1042-1045.

This doctrine is well stated in volume 3, Labatt on Master and Servant (2d Ed.) art. 1042, in the following language:

“The negative form of the doctrine under discussion may be stated in its most general form as follows: ‘A person is not * * * answerable at law for a failure to avert or avoid peril that could not have been foreseen by one in like circumstances, and in the exercise of such care as would be characteristic of a prudent person so situated.’ In other words, it is not negligence to fail to provide against an accident of such a nature that nobody could have foreseen it, and that no prudence could have anticipated the need of guarding against it. After an accident has occurred it may be easy to see what would have prevented it; but that of itself does not prove nor tend to prove that reasonable or ordinary care would have anticipated and provided against it.”

We have conceded the correctness of the jury’s conclusions as the basis upon which to determine the rule of law applicable, but we do not concede that this court would be bound to accept such conclusion; for it is in disregard of the natural laws which govern in such cases that an iron wheel would lift an iron spike from the ground and throw it any distance. If it be admitted as true, then it proves that it could not have been foreseen by the railroad company’s employés in this case, as such occurrence would be so rare that it could not be anticipated.

We therefore conclude that, admitting the truth of the statements made by the witnesses, the occurrence was of such a nature that it. could not have been anticipated and guarded against. Therefore the railroad company was not guilty of negligence, and is not liable for the injury which was caused. It is therefore ordered that the judgment of the district court and the Court of Civil Appeals be reversed, and that judgment be here entered that the defendant in error, Black-shear, take nothing by his suit, and that the plaintiff in error recover against him all costs of both courts.  