TEXAS & P. RY. CO. v. HARBY et ux., 94 F. 303

McCORMICK, Circuit Judge, after stating the case as above, delivered the opinion of the court. After hearing- the evidence, the court below practically withdrew from the jury all the issues but that of discovered peril, submitting only the question, did the engineer in charge of the engine which hit the child use proper care to prevent injuring it, after he discovered its peril? and the question of damages. The jury found for the plaintiffs the sum of $750.

We notice only the second of the errors assigned, because the view we have taken of it renders it necessary to reverse the judgment below, and on another trial the evidence may he materially different.

In that portion of the charge given by the court to which the defendant excepted, and on which it lias assigned error, the trial judge, in stating the general rule, said: “Wlien anybody is upon the track, either man or child, and such person is in a perilous position, and this perilous position is discovered by the servants of the railway company operating the train, these servants operating the train must use such care and caution as an ordinarily prudent person would exercise to stop the train in order to prevent injury to the party on the track.” Thus far the rule is stated with sufficient accuracy, but, without coming to a full stop, the trial judge proceeded to qualify it by adding: “And in this behalf the care and caution an ordinarily prudent person would use would be to use every power within their ability and means to stop the train in order that injury might not be inflicted on the person on the track; and if they fail to exercise this care, and to use every power and means consistent with the safety of themselves in their position on the train, and by reason of the failure to exercise such care and caution the person is injured, then they would be liable for any damage sustained or loss occasioned by reason of the Injury.” Thus qualified, the rule requires the use of a degree of care much beyond ‘‘such as ordinarily prudent persons would exercise,” even the utmost care that the most prudent persons would or could use.

Such a high decree of care is not and cannot be exacted under such circumstances of corporations or of natural persons, because it could not be met in the operating of the character and amount of machinery used and necessary to be used in railroad transportation. As was said by the circuit court of appeals for the Eighth circuit, we have no question that the trial court had in mind the true rule applicable to the situation, but, unfortunately, the form in which the instruction was given would not convey the proper meaning to a jury composed of men unskilled in legal phraseology. Manufacturing Co. v.

Johnson, 32 C. C. A. 309, 89 Fed. 677. The trial court probably had in mind this language, used by the supreme court of Texas in a somewhat similar case: “If defendant, through the parties in charge of the engine, knew of Breadow’s peril in time to have avoided same, such knowledge imposed upon it the new duty of using every means then within its power, consistent with the safety of the engine, to avoid running him down, and a failure so to do would render it liable, notwithstanding he may have been guilty of contributory negligence in being exposed to the peril.

This new duty and liability for its breach is imposed, upon principles of humanity and public policy, to prevent what would otherwise be, as far as civil liability is concerned, the licensed destruction of persons negligently exposing themselves to peril.” Railway Co. v. Breadow, 90 Tex. 26, 36 S. W. 410. It is to be considered that the language just quoted is not addressed as an instruction to a jury, but to trial judges and the legal profession.

It is to be observed, also, that the using of “every means then within the power of the servants of the defendant” is subject to the qualification embraced in the further langúage, “consistent with the safety of the engine.” In that case it was the running of an engine alone which inflicted the injury, and the words “consistent with the safety of the engine,” in their application to this case, are equivalent to the words “consistent with the safety of the train,” if these are understood to embrace the engine, the cars, the amount and character of freight, -and the persons on the train.

The analogous qualification actually given in this case in the statement of the general proposition is, “consistent with the safety of themselves in their position on the train.” The defect which we are attempting to point out was not cured or rendered less misleading and hurtful when the judge came to apply his general proposition to the case the jury were considering.

Immediately, in the same brief paragraph, without the interposition of a full stop, the language is repeated: “And in this respect you are charged that a reasonably prudent and cautious person would have used all the efforts in his power and within his means and ability, consistent with the safety of those on the train and engine, to stop the train.” Then, in the next sentence, stating the matter conversely, the judge says: “If, however, the engineer, after discovering the peril of the child, used all the efforts in his power, and all the means at his command, consistent with the safety of those on the engine and train, to stop the train, and avoid the injury,” etc., —Still clearly limiting tlie qualification of the duty to use all the means, etc., alone by the terms, “consistent with the safety of those on the engine and train.” Then, further on, in concluding tlie charge on this subject, the judge said: “If you And that he could have stopped the train by the exercise of such care as I have indicated to you, and that he failed to do so, and by reason of hia failure and neglect to do so this child was killed, then it would be your duty to find for the plain tilts; hut., if he could not have stopped the train by the exercise of the power and moans at his command, it will bo your duty to find for defendant.” In the opinion of the supreme court of Texas from which we have quoted it is said: “The principle [of humanity], however, has no application in the absence of actual knowledge on the part of the person inflicting the injury of the peril of the party injured in'time to avoid the injury by the uso of the means and agencies then at hand.

If he had no such knowledge, the new duty was not imposed, though it bo clear that by the exercise of reasonable care lie might have acquired tlie same.

The burden of proof was upon the plaintiff in tills case, in order to recover for a breach of such new duty, to establish, not that the employes might, by the exorcise of reasonable care, have acquired such knowledge, hut that they actually possessed it.” In this ease there is an utter absence of proof that the engineer saw the child until the engine was within a train’s length of the bridge, or that the fireman saw it until just as the engine got to- the bridge, or that any other servant of the company saw it before it received the fatal injury.

There is no evidence tending to show'that the brakes and sand were not applied to the utmost as soon as the child's presence on the track was discovered. On the contrary, the proof is ail one way, and conclusive, that both of those means were used as promptly and efficiently as was possible. The engine was not reversed. There was no dispute or room for question about what was done and what was not done.

The very substance of the issue was, not what was done or what was not done, but whether what was done was the use of such care and caution as an ordinarily prudent person would exercise to stop the train in order to prevent the injury to the party on the track. That is not a question of law, otherwise the trial judge would not have submitted it to the jury. Further than this, there is no proof tending to show that the engineer could have done anything more than he did do, except to reverse his engine.

It is doubtless true that a competent engineer in charge of such an engine, pulling such a train, at such a place, and exercising the care and caution of an ordinarily prudent person, would have used every power within his ability and means to stop the train, consistent., in his judgment, with the safety of those on the engine and on the train, and of the train and its freight.

From necessity, it was, and must ever be, a question for enlightened judgment in tlie very emergent time, “What means of those within my reach can I use that are consistent with my own safety,” the safety of other persons on the engine and train, and the safety of the train itself and its freight? It is true that the judgment of the jury is the final arbiter, and in particular cases it may be true that the defendant is liable for an error in judgment of its servant engineer.

The engineer says that, having in view the grade oí the track, the weight of the train, its speed, its proximity to the bridge and to the child on the track, his judgment was that to reverse the engine would not affect the speed of the train or the safety of the child, but that it would tear the engine all to pieces, throw her rods, and endanger the lives of all on the train, and that he could not stop the engine by any means in the world except by wrecking it.

It cannot be the law that the defendant or its servants are in duty bound to use means that will cause them to incur such extreme hazards on the barest possibility of being thereby able to prevent running onto a person, even a tender infant, whose presence on the track was not to have been expected, and was not discovered until the case presented the dire alternative of a fatal injury to the child or the most serious injury to the train and those thereon.

We are not able to believe that the jury would or could have found as a fact that a competent engineer, using the care and caution of an ordinarily prudent person, would have reversed his engine under the circumstances and conditions shown by the proof; or that, if he had done so, the injury to the child would have been thereby prevented, if they had not been misled by the charge of the court, or by their misunderstanding of his charge, into accepting it as matter of law, binding on their consciences as sworn jurors, to find for the plaintiffs because the engineer did not reverse his engine.

The tone of the instructions, and the reiteration of the definition of that care which a person of ordinary prudence would use, seems to us — as we think -it must have appeared to the jury — to express that the judge’s view of the law was that the engineer should have reversed his engine. We are far from deeming it our duty to limit the sound discretion of the trial judge in using large freedom in discussing the testimony in his charge to the jury. It is both his privilege and his duty to do so.

But he should at the same time take care to inform them that his suggestions are not binding on them as matter of law; that, however high may be their regard for his views of the evidence in a case like this, it is their duty, and not his, to determine from all the facts admitted or established by proof whether the care and caution shown to have been used was up to that measure which, in their judgment, a person of competent skill and of ordinary caution and prudence, placed in the engineer’s position, would have exercised.

For the error in the charge of the court below, the judgment must be reversed, and the case is remanded to the circuit court, with instructions to grant a new trial.