
    PECOS & N. T. RY. CO. v. ROSENBLOOM et al.
    (No. 2364.)
    (Supreme Court of Texas.
    Feb. 10, 1915.)
    1. Master and Servant <&wkey;>248 — Injury to Servant — Contributory Negligence — Discovered Peril.
    The negligence of an employs is no defense to an action for his death based on discovered peril, and where a railroad engineer discovered the peril of an employs, but failed to avoid killing him, the railroad company is liable.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 801-804; Dec. Dig. <&wkey;> 248.]
    2. Master and Servant &wkey;?248 — Death oe Servant — Contributory Negligence — Statutory Provisions.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6649, providing that contributory negligence shall not bar a recovery, but the damages shall be diminished thereby, applies only to cases in which an employer may rely on contributory negligence, and does not apply where the law of discovered peril imposes a liability on an employer for the death of an employé.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 801-804; Dec. Dig. <&wkey; 248.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by Mrs. M. A. Bosenbloom and others against the Pecos & Northern Texas Bail-way Company. There was a judgment of the Court of Civil Appeals (141 S. W. 175) affirming a judgment for plaintiffs, and defendant brings error.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, and Madden, Trulove & Kimbrough, of Amarillo, for plaintiff in error. J. A. Stanford, of Waco, and I-I. H. Cooper, of Houston, for defendants in error.
   BBOWN, C. J.

Mrs. M. A. Bosenbloom, for herself and as next friend of her minor children, Milton and Matilda Bosenbloom, and also for the use and benefit of Minnie and Isaac Bosenbloom, instituted this suit in the district court of Potter county against the Pecos & Northern Texas Railway Company, to recover damages occasioned by the negligent killing of her husband, M. A. Bos-enbloom, who was father of her children and the son of Minnie and Isaac Bosenbloom.

We make the following condensed statement of the facts as found by the Court of Civil Appeals, to wit:

M. A. Bosenbloom was in the employ of the railway company as a clerk, and a part of his duty was to take the numbers and other necessary descriptive matter of cars going out in the trains that left Amarillo. There was a train of cars standing on the main track in the railway yard at Amarillo, on which M. A. Rosenbloom was engaged in his work of checking up the cars and getting the numbers for the purpose of making a proper report of same. There was a side track, which ran parallel to the main track on which the train stood, at which he was working, that lay very near to the main track; so near that, if a man were to stand between the cars on the main track as they were and the other cars passing by, he would be in danger of being knocked down by the passing cars. On the side track there was a locomotive and tender, which was, for some purpose not necessary to mention, passing on the side track so that it would pass by the cars on which Rosenbloom was at work. Discovering the engine coming when it was near him, Rosenbloom undertook to pass over in front of the approaching engine, in order to escape the danger of being struck at a place between the cars. The engineer on the locomotive which was approaching on the side track saw Rosenbloom on the track, but did not check the speed of his engine, and it caught Rosenbloom on the track and killed him. It does not appear in the statement of facts that any notice was given to Rosenbloom so that he might have escaped before the engine came so near to him.

There is no question in the case as to the relation of the plaintiffs to Rosenbloom. There is no evidence of negligence on his part, except the fact that under the conditions he attempted to make his escape on the side track in front of the approaching engine. The engineer, as we have stated, saw Rosenbloom as he started across the track, and testified that he made some attempt to stop the engine but failed to do so.

No question is made as to the amount of the verdict in this case, nor is it attempted to show that Rosenbloom was guilty of negligence except as stated above. The plaintiff in error submits to this court two propositions, as follows:

First. That the plaintiffs have no right to recover in the character in which they sue, because Rosenbloom was engaged in interstate commerce at the time he was killed, and therefore they must be governed by the federal Liability Act.

Second. That the court erred in refusing to give tlie jury the charge requested by the defendant on the subject of contributory negligence by Rosenbloom.

The Court of Civil Appeals found, and so state in the opinion, that there was no evidence before the court upon which they could say that Rosenbloom was engaged in interstate commerce at the time, even if it be held that the work he was doing would constitute interstate commerce, provided there were any cars in that train which were carrying interstate freights. It was not shown that there was any freight of such character, or any car destined to points beyond the state in the train on which Rosenbloom was engaged at the time. Since the question is not raised by the facts found by the court, it is unnecessary for us to discuss the question as to whether he would be so regarded if it were true that the cars were loaded with interstate freight. That question is very important and not free from difficulty, and therefore we refrain from expressing an opinion where it is not called for by the facts of the case.

The district court submitted but one issue to the jury; that is, the issue of discovered peril, whether the operative of the engine discovered Rosenbloom on the track when he was in danger in time to have prevented injuring him, and failed to use all necessary efforts to avoid killing him. It therefore follows that, unless the operatives of the engine were guilty of that negligence and of killing the man after they knew of the danger, no recovery could be had, and it is beyond all question the law that the negligence of the party killed will not excuse the act of killing him. If it did, there could be no such recovery in law as provided for under the rule. It matters not that a man may be negligent, in fact, that he may be wholly disregardful of Ms own safety, yet it is true that the law will not permit an operative on a train to run upon a negligent party and destroy his life because he is negligent. The negligence of the party killed is no defense to an action based on discovered. peril. Therefore the district court did not err in refusing to submit the charge to the jury as to his negligence.

The defendant’s claim for a reduction of damages on account of the negligence of the deceased is based upon the following provision of our statutes (article 6649, 'Vernon’s Sayles’ Statutes):

“Contributory Negligence, Rule as to. — In all actions hereafter brought against any such common carrier or railroad under or by virtue of any of the provisions of the foregoing article and the three succeeding articles to recover damages for personal injuries to an employe, or where such injuries have resulted in his death, the fact that the employé may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such em-ployé. * * * ”

This statute applies only to cases in which the defendant might make his defense on account of the negligence of the party injured. It cannot apply to a case in which the negligence of the party deceased constitutes, no defense to the action, and, as we have shown in this case that the negligence of the deceased would constitute no defense to the action, therefore there could be no reduction of damages recovered by reason of the killing in a case where the law of discovered peril determines the rights of the parties. The court therefore properly refused to give the charge to the jury.

We find no reversible error in the proceedings of the court, and the judgments of the district court and the Court of Civil Appeals are therefore affirmed.

Affirmed. 
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