H. & S. A.
(O'4ttcui£ OWh't, W. D. Te:taff, El PaSQ DiVision. OcOOOO1'15, 1890,)
R.uLR04D COMPJ.:NIES-NEGLIGDOE-mroBIEs TO Pl'lRSONS ON TB.\CK.
Wllerea walking along,a railroad track, is and injured by a train, the llabjlity of the rai1l'oal,l c:ompanl depends upon the question whether those in of the train. af!6r dlScoverIDg that he was not going to leave the track,used.aU the means in their power to stop ths train before lt ,struck him.
Rev. St. IIort. 4289. which prOvides that locomotives shall whistle or ring before crossing a road, and that a company, neglecting this precaution, shall "be liable for all damage which shall' be sustained by any person by reason of such neglect," doesuot render a company violating such statute' liable for injury to one Who saw tlls approaching train in time to avoid it.
S. MEASURE ,0)1' DAMAGES FOR TORTS., ,,' ,
In an actiOn for personal jury, in estimating the damages, may cons,l,'der, PIa,i,ntiff,'sphysical and m,e'Dta"I SU,'fferiD,g" the p,rObablG elI,oot of the injury upon his he!J,lth and the use of bis limbs, his ability to ],abor and attend to his affairs. and generally any reduotion of his power and capacity to earn money and to pursue the courae of life ,which he might otlj-erwise have done.
At Law. O. H. McGinnis and N. B. B(!fI,dy, for plaintiff. Davi8,' Beall Kemp, for defendant.
MAXJl)Y, J., (charging jUrfI.} l'he plaintiff, Rafael, Saldana, brings suit to recover of the defendantJ,'llilway company damages for personal injuries alleged to have been iriflicted upon him by one of the defendant's engines on the 6th day of September last, at the city of El Paso, Tex. It is in effect charged in the that the plaintiff's injuries resulted from the negligence of the defendant's servants ai-id employes undersubstantially the following circumstances, to-wit: That plaintiff, in returnwith two donkeys loaded with wood, desired to pass over ing to El a portion of defendant's road with his donkeys in order to cross a certain "hollow or gulch;" that before stepping upon the track he looked in both directions, east and west, to ascertain whether the track was clear, so that he could proceed along it without danger to himself and. his animals, and after taking all necessary precautions, as he alleges, for his safety, he then got on defendant's said railway track with his said two donkeys to pass over said "hollow or gulch;,j that immediately upon getting on the track he discovered, at a distance of about 360 feet,· Ii switch engine of defendant approaching at a rapid rate, dashing around a curve of the track; that the engine gave no signal ofits approach, by bell or whistle, 'but that, at said distance of about 360 feet, one of the defendant's employes on the engine "waved his hands to him, [plaintiff,] motioning to plaintiff to remove his donkeys from the track, which he was endeavoring to do, believing, after receiving said signal, that said switch engine would check up long enough for him to do so; but before he could remove the hindmost onefrom said track, the said switch engine ** * neither stopped nor !3lackened its speed, but negligently, willfully, recklessly, and wantonly, with great force and speed I ran against one of plaintiff's donkeys, which was in the lead, and threw'him against the
SALDANA V. GALVEST<?N, H. & S. A. RY. CO.
hindmost one, thus knocking both off the track, * *, ,- and thua struck plaintiff,. as he was on. the side of the trllck, in his attempt to escape, knocked him down, and run over him, and cut off one of his feet, and broke and crushed the other leg, and otherwise bruised and injured plaintiff." It is further alleged that defendant was also guilty of negligence, resulting in plaintiff's injuries: in failing to ring' the locomotive bell or blow the whistle. in approaching the public crossing, which is alleged to be about 120 yards west from the place of the accident. The court has thus given you a brief statement of the plaintiff's cause of aQtion. In its answer the defendant denies, generll,lly, all in the petition. contained, apd.. further interposes, in. bar of the action, the plea of contributive negligepce on the part of plaintiff. The plaintiff attributing his injuries to the negligence of the defendant's servants as the direct cause of the sa,me, it is incumbent upon him to establish by proof the truth .of the charge he prefers, for if his did not result directly from the negligence of the company's servants and employes, he would not be entitled to a recovery. What, then, is negligence? As. defined py the supreme court, in Railroad Co. v. Jones, it "is the failure to do what a reasonable andprp.dent person would ordinarily have done under the circumstances of the situation, or doing what such a person, under the existing circumstances, would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and by the exigencies of the occasion." 95 U. S. 441,442. But in reference to the question of negligence, we must, in this case, proceed further than simply to inquire into the failure of duty on the part of the employes of defendant. We must look to the testimony, and ascertain whether the plaintiff performed the duty which the law enjoined upon him. The defendant insists that he (the plaint\ff) was the negligent party, and that he was the author of his misfortunesj and thus we have presented by the pleadings the concurrent negligence of both parties; negligence on the part of the defendant, and contributive negligence on the part of the plaintiff. In this connection it is further held by the supreme court, in the case cited, that leone who, by his negligence, has brought an injury upon himself, cannot recover damages for it. Such is the rule of the civil and of the common law. A plaintiff, in such cases, is entitled to no relief. But where the defendant has been guilty of negligence also, in the same connection, the result depends upon the facts. The question in such cases is (1) whether the damage was occasioned entirely by the negligence or improper conduct of the defendant; or, (2) whether the plaintiff himself so far contributed to the mi'3-, fortune, by his own negligence or want of ordinary care and caution, that put for. such negligence or want of care and cautiqn on his part themis": fortune. would not have happened. In the former case the plaintiff is entitled to recover, in the latter he is not." Id. 4;42. Now, gentlemen, to the facts, and, applying to them the rules of law above annoQnced, determine the of negligence as between the parties. It has' .peen clearly shown, not.only by the testimony of the defendant, but that of accidenh while. the
plaintiff wall on the railway driving his two donkeys up and along the track in the direction of the switch he discovered the engine approaching at a distance, according to the testimony of the plaintiff himself, of 40 or 50 yards. ',Some of the witnesses, however, place it at a greater and some at a less distance. That the plaintiff was walking up the track, in view of the advancing engine, there is no doubt. It is furthercpDceded that at the point where plaintiff got pponthe track there was neither a street norJ>ublic crossing, the public'ctQssingbeing something over 200 yards west." From tho phice of accident, looking east, the switch engine, on account of the curve in the road, could be seen only about 117 yards, and persons on the engine could see an equal distance looking west. As to the rate of speed of the engine prior to and at the time of the accident the testimony is conflicting, and you must satisfy yourseh'esupon that point from a consideration of all the facts and circumstances in evidence. The plaintiff further testified that an employe ofthe company on the engine waved his hand to him .when the engine was 40 or 50 yards distant. 1'he plaintiff insists that after he saw the approaching engine he did what he could to remove himself from the impending danger, but that he was unable to do so owing to the short interYlll which elapsed between the time be saw the engine and tbe collision which ensued. It is urged, however,'by the defendant that could have easily protected himself by stepping on either the side of the track l but that, instead of making his escape from a known danger; he was engaged in the efrort to drive liisdonkeys froni the track until it·was too late to save himself. In viewof the above facts, and others ,detailed by tbewitllesses, it becomes important in' this 'immediate tt}'consider the legal rights and duties of the plaintiff and defendant's employes, respectively. It is maintained by the defendant that the plaintiff was on the track; that the employes on the engine had the right to a clear and that theyfurther were authorizedtopresume that persons would remove themselves from the track before an advancing locomotive. Upon these points you are in8tructed that the employes operating the engine had the superior right to the use of the railway track for the purpose of enabling them to discharge the duties which the company owed to, itself and the public. The phlintift' had no lawful right to use the track as aroall-way for himself and animals, (Railway Co. v. Garcia, 75 Tex. 590, 13 S. ,V. Rep. 223,) and if he voluntarily chose to assume the risk of appropriating the track for such purpose, and his injuries resulted directly from his conduct in that respect, upon 'him must fall the consequences of his acts, and he cannot recover. Railroad Co. v. Houston, 95 U. S. 702. Touching the duty of a railway company to persons Oil the track, it is said by t14e supreme court of this state, in Railway Co. v. Richards, that "a duty may be general, and owing to everybody, orit maybe particular, and owing to a single person only, by reason of his peculiar position. * *, * The general duty of a railroad company to run its trains with care becomes a particular duty to no one until1,l.Eiis in a fjition to have a right to complain of the neglect; the tramp Who