San Antonio & Aransas Pass Railway Company v. R. E. Hodges et al., 102 Tex. 524

Mr. Justice Williams delivered the opinion of the court. We think it proper to say that we agree with counsel for plaintiff in error in their contention that the duty of those operating an engine and discovering a person in peril in its path is to exercise ordinary care, that is, such care as persons of ordinary prudence in their situation would use, to avoid injury.

The difference in the expressions on the subject found in the decisions is due to the fact that some of them state this legal standard of duty while others describe the diligence to be employed to constitute such ordinary care—■ the performance of the duty. In situations of such imminent peril the care of an ordinarily prudent person consists of a very high degree of diligence to avert injury, and the decisions discussing the question mean this rather than that more than ordinary care is exacted by law. That degree of care is all that anyone owes to another, except when certain special relations exist.

The jurors trying a ease are the judges as to what constitutes this ordinary care, and abstractly, it is improper for the court in its charge to decide for them just what should or should not have been done by the party whose conduct is under investigation.

But it is also often true that a charge that is addressed to the particular things that should have been done rather than to the legal standard of duty is unobjectionable because, practically viewed, it exacts no more than the doing of that which obviously was necessary under the facts of the particular situation to constitute the care required, and therefore does not invade the province of the jury.

But whenever a real question exists under evidence, whether or not precautions should have been taken other and different from those which the party judged to be sufficient and therefore took, that question is for the jury to decide by applying the standard of care of a person of ordinary prudence, and it should be left to the jury by the charge. In this case the charge made the defendant liable, if the fireman discovered the peril of the deceased and could have signalled the engineer in time for the latter to have averted the accident by stopping the engine..

Under the facts of this case the charge assumed nothing about which there could be any question. The fireman, but not the engineer, saw the deceased at work on the track for a long distance as the engine approached him, but took no precaution until too late, assuming that deceased would get out of the way. The true question was submitted to the jury and was, did the fireman soon enough realize the perilous situation to have prevented the catastrophe, and not what measures he ought to have taken to that end. That if he discovered the danger, he ought to have had the engine stopped, admits of no question.

Application refused.