Missouri, Kansas & Texas Railway Company of Texas v. C. T. Reynolds, 103 Tex. 31

Mr. Justice Williams delivered the opinion of the court. This writ of error is from a judgment affirmed by the Court of Civil Appeals in favor of defendant in error (plaintiff below) against plaintiff in error for damages sustained by the former from being struck by an engine of the railroad company under the following circumstances: Reynolds walked east along a street in Denison to its intersection with another street running north and south along which run several tracks of the defendant. He stopped - upon one of these tracks to await the passing of a train upon another track in front of him.

Just at this time, about fifteen or twenty feet from plaintiff, a switch engine was backing north along the track upon which he stood, moving two to four miles an hour. Three employes rode upon a footboard at the end of the tender and saw plaintiff as he stopped in the perilous position and knew that he was in danger of being struck.

Their testimony is to the effect that each of them at once gave warning cries to plaintiff, one of them directed another to turn the angle cock, near which the latter stood, so as to set the air brakes, which the latter at once tried to do, while the third, seeing that plaintiff .did not heed their shouts, leaned forward to shove him out of the path of the engine, in which the employe so far succeeded that only one of plaintiff’s legs was caught and crushed.

According to this testimony the man who attempted to set the brakes could not do so sooner than they were set by the engineer, too late to prevent the injury. The plaintiff was not seen from the cab, but the engineer says he heard the halloo of one of the men on the foot-board and made a service application, and that then the fireman ■hallooed and he made an emergency application. The 'plaintiff had then been knocked down.

The plaintiff introduced testimony of experts tending to show that the engine, moving at the rate of speed stated by some of the witnesses, could have been stopped by the proper use of the air brakes in a shorter distance than that traversed by it before it struck plaintiff, and, inferentially, that the servants did not make proper effort to stop. This will serve to show the state of the evidence sufficiently for the purposes of the decision.

The error for which this writ was granted will appear in the following instruction given to the jury, the objectionable feature appearing also in other parts of the charge: . . . “But on the other hand, if such employe, while so operating an engine, sees a person standing on such track and it reasonably appears that such person is not aware of the approach of the engine, and it becomes reasonably apparent that he will not leave' the track before the engine reaches him, it is the duty of such employe to use every means then reasonably within his power in the exercise of ordinary care to stop such engine and avoid striking such person.” In this the court determines for the jury, as a matter of law, that the effort of the defendant’s employes must have been directed to the stopping of the engine.

There is no rule of law that requires that specific thing. What the law requires is the exercise of the care to avoid injury which persons of ordinary prudence would use in such emergencies. This care must, of course, be proportioned to the danger, but what acts and expedients constitute it in a given situation is a question to be determined by the jury and not by the court. (San Antonio & A. P. Ry. Co. v.

Hodges, 102 Texas, 524; 2 Thompson on Neg., sec. 1734, 1738.) The evidence shows that several things suggested themselves as proper to be done and that some of these were done, or attempted, by the employes to avert the collision. Was it best for the employes to do as the jury might find they did, or that they should have directed their attention more to the stopping of the engine? Was what they did in. the emergency in which they thus suddenly found themselves the exercise of that kind and degree of care that men of ordinary prudence would have used in their situation?

We think it quite clear that these are questions to be determined by the jury and to be determined from the facts and circumstances as they existed and appeared at the time and not by looldng backward and inquiring merely whether or not the event proved that some other course than that pursued would have been more effectual in preventing the injury.

Of course, if it be true that all was done that could have been done .to stop the engine, that fact is td be considered, but it is to be made the reason for liability only in case the jury shall find that what was done fell short of the measure of care required by the law. It is true that such a charge as that in question, applied to some states of fact, would not be subject to the objection made to this, for the reason that those facts might show that there was no other course open to those in charge of an engine but to try to stop it.

Such charges have been presented in cases coming before this court and have not been regarded as objectionable, for the reason that the court always may assume that about which there is no dispute. This can not be said in cases like this where the question is raised by the evidence as to what was best among several courses of conduct and whether or not that which was done was all that ought reasonably to have been expected of persons of ordinary prudence called upon to act in such surroundings.

Under the facts in this case, the charge not only determined a question which belonged to the jury, when it assumed that the engine must have been stopped if that could have been done by the means at hand, but, in thus confining the jury to that one question, improperly narrowed the issue. The most complete diligence to stop an engine, while under some conditions constituting all that could be expected, might, under others, be less than the full performance of the duty to exercise the care of an ordinarily prudent person.

In some situations warnings and other expedients are more effectual than any effort to stop would be. (Sanches v. San Antonio & A. P. Ry.

Co., 88 Texas, 120.) While we are far from any purpose to relax the requirement which the law, for the preservation of life, makes of those controlling agencies in the operation of which is put in peril, we must hold that such requirement is that they exercise the care which persons of ordinary prudence would employ in situations involving such immediate danger, and that the jury are the judges as to what measures of diligence are necessary to constitute that care under given circumstances.

It is only when the facts leave no question open for controversy or difference of opinion that the court may assume that a particular course of action is required. Further objection is made to the charge because it did not require that the employes should have “realized” the danger, but made it suffice to raise the duty defined if they, had “reasonable ground to believe and it was apparent to them” that plaintiff was in danger. For practical purposes we think a person must be treated as knowing such a fact when he has reason to believe it and when it is apparent to him.

When facts are seen by those operating an engine which ought to produce the conclusion in the ordinary mind, they must act upon them. Ho other rule could be practically applied.

The seventh special charge requested by defendant is as follows: “If you believe from the evidence in this case that defendant’s servants on its engine did all they could to make the plaintiff leave the track and to place the plaintiff into a place of safety and avoid injuring him and that the means they used in doing this, were such means as a person of ordinary care would have used under the same or similar circumstances, you will find for the defendant, although you may believe they did not apply air on the engine or attempt to stop the engine.” This is open to one of the criticisms passed upon the charge of the court.

It unduly restricts the inquiry, in that it makes sufficient that which defendant’s servants did, although they did not attempt to stop the engine, if the means they used “were such means as a person of ordinary care would have used under similar circumstances.” It might be true that such a person would have used such, means and at the same time be true that he would aíso have attempted to stop the engine. To the completeness of a charge constructed as this one is, it is essential that it require that the means used by the servants constituted all that a prudent person would have done.

We do not sustain the contention of plaintiff in error that the court should have directed a verdict for it. We find nothing else needing discussion. ' Reversed and remanded.