W. C. Ford, Sr., v. Panhandle & Santa Fe Railway Company, 151 Tex. 538

Mr. Justice Calvert delivered the opinion of the Court. Petitioner, as plaintiff, sought damages of respondent, as defendant, for injuries sustained in a railroad crossing collision. The case went to trial before a jury on pleadings by the plaintiff charging that the collision was proximately caused by various negligent acts of the defendants, with additional general allegations charging the defendant with liability under the doctrine of discovered peril.

At the conclusion of the evidence the plaintiff waived all grounds of liability and recovery save that of discovered peril; and, having overruled the defendant’s motion for instructed verdict, the trial judge submitted the case to the jury on issues of discovered peril and certain defensive issues of unavoidable accident and sole proximate cause.

In the course of time the jury reported that it was unable to agree on answers to the submitted issues, whereupon the defendant renewed its motion for an instructed verdict or in the alternative that the case be withdrawn from the jury and judgment be rendered for the defendant. The motion was based upon the absence of evidence raising the issue of discovered peril. The motion was granted, the jury was discharged, and judgment was rendered for the defendant. The judgment was affirmed by the Court of Civil Appeals. 246 S.W. 2d 233.

In this Court the defendant seeks to sustain the judgments of the courts below upon the following grounds:

(1) That the doctrine of discovered peril is not available to a plaintiff as a ground of recovery in the absence of proof of primary negligence on the part of the defendant; and (2) that there was no evidence raising the issue of discovered peril. 1 In support of its first proposition defendant cites the cases of Terry v. English et al., 130 Texas 632, 112 S. W. 2d 446, and Texas Pacific Coal & Oil Co. et al v. Wells et al., 151 S. W. 2d 927, 932, (affirmed 140 Texas 2, 164 S. W. 2d 660). Neither of the cited cases support the proposition asserted.

On the other hand, there are many decisions of the courts of this state sustaining a recovery based on the doctrine of discovered peril where there was present in such cases no issue of primary negligence on the part of the defendant. As an example, see Sisti et al v. Thompson, 149 Texas 189, 229 S. W. 2d 610. Obviously this must be so.

If one discovers another in a position where injury in all reasonable probability will be inflicted unless the discoverer uses ordinary care to prevent the injury, the duty to use such care arises, and that wholly without reference to the character of the discovered’s conduct before the discovery. The defendant lays particular stress upon the absence of evidence to show that the defendant discovered the plaintiff’s peril in time to have avoided injuring him and its absence to show that the defendant failed to use all the means at hand to avoid injuring him.

To put it another way, the defendant says that the evidence in the record before us shows conclusively and as a matter of law that the defendant did not discover plaintiff’s peril in time to avoid injuring him and that it also shows conclusively and as a matter of law that the operatives of defendant’s train used all the means at hand, after discovering the plaintiff’s peril, to avoid injuring him. 2 The quantum of proof required of the plaintiff on these elements of discovered peril in order to entitle him to have them submitted to the jury was such facts and circumstances as taken together with all reasonable inferences therefrom constituted some evidence of probative force of their existence.

White et al v. White et al, 141 Texas 328, 172 S. W. 2d 295; Stevens et al v. Karr, 119 Texas 479, 33 S. W. 2d 725; FitzGerald v. Hull et al, 150 Texas 39, 237 S. W. 2d 256. 3 In determining whether the plaintiff discharged this burden we must view and interpret the evidence in the record in its most favorable light to the plaintiff, disregarding all evidence and the inferences therefrom favorable to the defendant. Cartwright et al v. Canode, 106 Texas 502, 171 S. W. 696; White v. White, supra.

The collision occurred at about 10:25 o’clock in the morning in the City of Levelland where the defendant’s track crosses Avenue H. The plaintiff was driving north on Avenue H and the train, with six loaded and fourteen empty cars, approached from the east. It was a clear day, visibility was good, and the view of the crossing was unobstructed.

It was the theory of the plaintiff that the sun shining from the east prevented his seeing the train until the front wheels of his automobile had crossed the first rail at which time, discovering the nearness of the train bearing down upon him, he stepped on the gas in the belief that he “would beat it.” We first inquire whether the evidence shows conclusively that the train operatives exercised ordinary care in the use of all means at hand to avoid injuring the plaintiff.

Or, on the other hand, are there such facts and circumstances in the record, viewed most favorably to the plaintiff, which with all reasonable inferences therefrom, entitled the plaintiff to have this issue submitted to the jury? 4 Much of the evidence was conflicting, and it must be borne in mind that it was the province of the jury to judge the credibility of the witnesses and the weight to be given their testimony. It was their province also to resolve conflicts and inconsistencies in the testimony of any one witness as well as in the testimony of different witnesses.

Texas Law of Evidence by McCormick and Ray, page 3, Sec. 3; Austin Fire Ins. Co. v. Adams-Childers Co., Texas Com. App., 246 S. W. 365; Gulf, C. & S. F. Ry. Co. v. Higginbotham, Tex. Civ. App., 173 S.

W. 482 (no writ history). 5 Defendant’s fireman, who was on the left side of the engine, testified that he first saw the plaintiff’s automobile when the train was some 300 feet from the crossing, and that he estimated the speed of the automobile at that time to be 15 miles per hour and the speed of the train to be 10 to 15 miles per hour; that the speed of the automobile remained unchanged; that because of the slow speed it was making he at first thought the automobile would stop but concluded it “probably would not stop” when the automobile was “20 to 25 feet” from the crossing and the pilot of the engine was “approximately 100 feet” therefrom; that at this point he was “aware that the car in question was in a position of peril” and “that if something didn’t happen” they “were going to hit that car”; that at this point he called to the engineer to apply the emergency brakes ■ — “big-hole it”- — which the engineer did; that when he told the engineer to “big-hole” it he thought the plaintiff “was in a position which he could not get out of by himself” When the fireman discovered the perilous position of the plaintiff it was his duty to warn the engineer and to call for the application of the emergency brakes.

It then became the duty of the engineer to apply the emergency brakes. It is not suggested that this could not have been done with safety to the train.

The fireman and the engineer testified that the brakes were applied, the fireman testifying that they were applied at “approximately 100 feet” and the engineer testifying that they were applied at 30 to 40 feet of the crossing, but the jury was under no obligation to believe them. “A jury will not be bound by the statement of defendant as to when he discovered the danger of plaintiff and as to the efforts made to avoid the injury.” Southland Greyhound Lines, Inc. v. Richards, Tex. Civ. App., 77 S. W. 2d 272, 273, (writ dism.) ; Quanah, Acme & Pacific Ry. Co. v. Eblen, Tex. Civ. App., 55 S.

W. 2d 1060, 1065 (writ refused). 6 A simple analysis of the testimony of the fireman will suffice to demonstrate the adequacy of the evidence to take to the jury the issue of failure to apply the emergency brakes. The fireman’s testimony would support a conclusion by the jury that at the time the automobile was 300 feet from the crossing traveling toward the crossing at a rate of speed of 15 miles per hour the train was also 300 feet from the crossing traveling toward the crossing at a rate of speed of 15 miles per hour, a rate of speed confirmed by the engineer, the conductor and two brakemen.

His testimony and that of a disinterested witness is that the speed of the automobile remained unchanged. If there were no application of the brakes of the train so that its rate of speed also remained unchanged, the train and the automobile would have arrived at the crossing at almost the same instant. They did arrive there at almost the same instant. It follows that this was a strong circumstance that the brakes of the train were not applied and the speed of the train was not diminished before it reached the crossing. But there are other supporting circumstances also.

One nearby witness watching the approach of the train heard no noise indicating an application of emergency brakes and observed no appreciable diminution of speed of the train before it reached the crossing. The plaintiff saw no sliding wheels but the wheels just “kept rolling on,” although the conductor testified that the application of emergency brakes would cause the wheels on the empty cars to slide.

The fireman testified that if the emergency brakes had been applied when he first saw the plaintiff the train could have been stopped before reaching the crossing, a distance of 300 feet, and yet the train was not stopped until the engine had gone 365 feet beyond the crossing, another circumstance to bolster a conclusion by the jury that the brakes were not applied before the train reached the crossing. We also hold from an analysis of the evidence that a jury issue was raised on the question of whether the discovery of the plaintiff’s peril was made in time to avoid injury to him.

In this connection, the plaintiff insists that there are sufficient circumstances in evidence to support a conclusion by the jury that plaintiff’s dangerous position was discovered by the fireman at a greater distance than 100 feet from the crossing. We find it unnecessary to determine this question. 7 As has already been observed the fireman testified that he discovered the plaintiff’s peril when the train was “90 to 100 feet” or “approximately 100 feet” from the crossing.

Interpreted most favorably to the plaintiff this testimony would support a conclusion by the jury that at the time of the discovery the train was 100 feet from the crossing.

True, the fireman also testified that at the time of the discovery the automobile was 20 to 25 feet from the. crossing, but in the light of his testimony, already noticed, as to original distances of the train and automobile and their respective rates of speed, the jury could have rejected the fireman’s estimate of the distance of the car from the crossing and could have concluded that the automobile at the time of the discovery was also 100 feet from the crossing, and could still have accepted the fireman’s testimony that at such time he realized that the plaintiff was in a position of peril. Gulf, C. & S. F.

Ry. Co. v. Higginbotham, supra. Since the automobile was hit on the rear fender and lacked only 3 or 4 feet of crossing the track in safety, the jury could reasonably have concluded that an application of the emergency brakes at any time before the train reached the crossing would have afforded the necessary time for the automobile to pass over the track unharmed. The duty rested on the train operatives to slacken the speed of the train even if it could not be stopped before reaching the crossing. Texas & P. Ry. Co. v. Robinson, 4 Tex. Civ. App. 123, 23 S. W. 433 (writ refused); St. Louis S. W. Ry.

Co. of Texas v. Ford, 237 S. W. 655; Galveston Electric Co. v. Antonini, Tex. Civ. App., 152 S. W. 841, 845 (writ refused). As was said in the Ford case, a case closely analogous on the facts: “The undisputed evidence shows that the wagon was struck near its rear end, and Ford was whipping his team to escape the threatened collision. This warrants an inference that a delay of even one or two seconds might have enabled Ford to escape.

Such a delay might have been caused had the engineer used more diligence in applying his brakes.” Even allowing for normal reaction time it yet appears that a prompt application of the emergency brakes might have allowed the plaintiff’s automobile to pass over the track in safety.

But the defendant says — and this in spite of the very positive testimony of the fireman heretofore quoted — that the fireman could not have discovered the plaintiff in a position of peril at the time he said he did because the plaintiff was not at such time in a position of peril since the automobile could have stopped before going upon the tracks. To support its position the defendant relies upon language from the cases of Panhandle Ry. Co. v. Napier, 135 Texas 314, 143 S. W. 2d 754, and Parks v. Airline Motor Coaches, 145 Texas 44, 193 S. W. 2d 967.

The opinion in the Napier case, written by Commissioner German and adopted by this Court, contains the following language: “plaintiff could not have come into a position of peril until he reached approximately twenty feet of the engine, when it became too late for him to apply his brakes to prevent a collision.” There is a statement in the opinion in the Parks case, a case in which a motor bus hit a pedestrian, that the defendant’s driver owed the deceased no duty of care “unless he knew that Parks was going to attempt to cross the highway in the path of the bus and thus place himself in a position of peril.” These expressions from the Napier and the Parks cases are not the first such expresisons to creep into this Court’s opinions in our judicial history.

As early as 1900 we find this Court declaring in an opinion by Associate Justice Williams in the case of Ft. Worth & D. C. Ry. Co. v. Shetter, 94 Texas 199, 59 S. W. 533, that trainmen owed no duty of care to one approaching a railroad track unless they knew that he would undertake to cross the track. In the opinion it was said: “A person walking negligently along a railroad track in front of a moving train will surely be hurt unless the train stops, or he gets out of the way.

In a sense he may be said to be in danger, but those controlling the train are not required to assume that, by his negligent failure to act, he will remain in danger. It is only when they have realized that he cannot or will not get out of the way that the duty of averting a collision arises.” This language was quoted with approval in an opinion written by Justice Brown in 1906 in the case of Houston & T. C. Ry. Co. vs. O’Donnell, 99 Tex. 636, 92 S. W. 409, 410.

All four of the cases — the Shetter, the O’Donnell, the Napier and the Parks — express the same legal philosophy, which may be said to be that no duty of care toward one on or approaching a railway track or roadway rests upon trainmen or operatives of vehicles until injury to such an one appears certain. This philosophy as expressed in the Shetter and O’Donnell cases was examined and pointedly and specifically repudiated in 1907 by Chief Justice Gill of the Court of Civil Appeals in an opinion in the case of International & G. N. Ry. Co. v. Munn, 46 Tex. Civ. App. 276, 102 S. W. 442.

Chief Justice Gill characterized the language quoted from the Shetter case and approved in the O’Donnell case as “loose expressions in cases from courts of the highest authority” and said that the cases actually intended to hold that for a duty of care to one on or approaching a railroad track to arise “it is not requisite that the engineer must know that disaster is inevitable unless he himself can avert it It is enough if he knows that the person injured was in a place of danger from which he probably could not or would not extricate himself in time.” Then with respect to the fact situation before the Court — that of a deaf man on a railroad track being hit by a train, which, by way of emphasis of what was said, was the identical fact situation as in the O’Donnell case — Chief Justice Gill wrote: “In a legal sense and in point of fact it is accurate to say that the peril of one in Munn’s' position consisted of his ignorance, for there was no time up to within a few feet of the train when he might not have saved himself had the knowledge of its approach been borne in upon his senses.” The Supreme Court refused a writ of error in the Munn case.

After the decision in the Munn case, and until it was reP asserted in the language quoted from the Napier and Parks cases, the opinions of appellate courts in Texas reflected a singular unanimity in rejection of the “certain injury” philosophy in the doctrine of discovered peril. See Houston & T. C. Ry. Co. v. Finn, 101 Texas 511, 109 S. W. 918; International & G. N. R. Co. v. Tinon, Tex. Civ. App., 117 S. W. 936, 938 (writ refused) ; Gehring v. Galveston Electric Co., Tex. Civ. App., 134 S. W. 288 (no writ history); Galveston Electric Co. v. Antonini, Tex. Civ. App., 152 S.

W. 841, 845 (writ refused) ; Higginbotham v. Gulf, C. & S. F. Ry. Co., Tex. Civ. App., 155 S. W. 1025 (no writ history) ; Gulf C. & S. F. Ry. Co. v. Higginbotham, Tex. Civ. App., 173 S. W. 482 (no writ history) ; Gulf, C. & S. F. Ry. Co. v. Phillips, Tex. Civ. App., 183 S. W. 806 (no writ history) ; Galveston-Houston Electric Ry. Co. v. Patella, Tex. Civ. App., 222 S. W. 615, 627 (writ dismissed) ; Hines v. Arrant, Tex. Civ. App., 225 S. W. 767 (writ refused) ; Galveston H. & S. A. Ry. Co. v. Wagner, Tex. Com. App., 298 S. W. 552; Short v. Nehi Bottling Co., Tex. Civ. App., 145 S.

W. 2d 684 (no writ history) ; Barnes v. Price, Tex. Civ. App., 226 S. W. 2d 657 (writ refused). It will be well to notice the reasoning of the courts in a few of the cases.

In an opinion by Chief Justice Gaines in the Finn case, the Supreme Court undoubtedly adopted the rule laid down in the Munn case by saying: “The case was submitted to the jury solely upon the ground of discovered peril, and, the jury having found that the servants of the company discovered that the plaintiff was in a perilous position, or about to enter such position, in time to have avoided the injury by the means at their command, we cannot reverse the judgment if there be any evidence to justify the verdict.” In the Gehring case the Court condemned a charge that did not impose a duty of care toward one near railroad tracks unless it appeared that “he would certainly be injured unless the operatives of the car would prevent it.” The Court asked: “When * * * the proximity of deceased to the track was such as to excite in his (the motorman’

s) mind an apprehension that the deceased would surely be struck if he continued walking as he was, and when it was apparent that he did not hear the ringing of the gong, could the motorman delay action until such time as he realized that the deceased would certainly be injured unless he prevented it?” The Court answered: “We think not. * * * It is the knowledge by the operatives of the danger of injury and not the certainty of injury, that calls forth the action.” In the first Higginbotham case the plaintiff was hit by a train while he was apparently absorbed in trying to get his horses off the railroad track.

With reference to the duty owed to the plaintiff by the train operatives, the Court said: “It was not necessary in order to charge them with the duty of using the means at their command to prevent injury to the deceased, that they should have believed or thought it certain that deceased would not get out of the way of the train. * * * If the circumstances reasonably indicated to said operatives the probability of his not getting off of the track; they were not authorized to speculate on whether he would or would not get off, and take the risk of killing him when it was in their power to prevent injuring him.

If the doctrine of discovered peril only applied when the operatives of a train were certain that the person injured was in peril of life and took no steps to save him when his injury could have been prevented, the necessary proof in every case in which discovered peril is a ground of recovery would show a case of murder or criminal negligence. Such proof is not necessary.” In the case of Hines v.

Arrant the defendant railroad requested a special charge on discovered peril which would have exculpated it of liability unless “the engineer actually knew that plaintiff would attempt to cross the track in front of the train.” The Court of Civil Appeals said: “The charge requires the jury to find too much in order to reach the conclusion that the engineer should use the facilities at his hand to stop the train. He could not in the very nature of things actually know what was in the mind of the appellee as the latter was driving toward the crossing.

It was his duty, if he discovered the appellee approaching the crossing and could reasonably infer that he would likely undertake to cross the track, to use the facilities at hand to prevent a collision, either by stopping or by lessening the speed of his train, or by giving some warning of the train’s approach.

He had no right to wait until he was absolutely certain that the traveler was going into a place of danger before taking the proper steps to avoid injuring him.” In the Wagner case, a case in which a pedestrian was killed while running across a track in front of a train, the Court, speaking through Commissioner P. J. Harvey said: “In order for a person to be in peril, it is not necessary that bodily injury will certainly be suffered by him. He is in peril whenever he is pursuing a course which probably will terminate in serious bodily injury to him.

Whenever it reasonably appears to a second person, from facts and circumstances within his knowledge, that a person is pursuing such a course and probably will pursue it to the end, then, in such event, the second person is held to have knowledge of the peril of the other.” A few other cases illustrating from an application of the law to the facts that certainty of injury and knowledge thereof was not made the basis for applying the doctrine of discovered peril, are Verble v. Schaff, Texas Com. App., 251 S. W. 1023; Houston, E. & W. T. Ry. Co. v. Kopinitsch, 114 Texas 367, 268 S. W. 923; Houston, E. & W. T. Ry.

Co. v. Sherman, Tex. Com. App., 42 S. W. 2d 241; Texas & N. O. R. Co. v. Krasoff, et al, 144 Tex. 436, 191 S. W. 2d 1; Sisti et al v. Thompson, 149 Texas 189, 229 S. W. 2d 610. Other such cases might be added ad infinitum. The language quoted from the Napier and the Parks cases should be disapproved only after the most careful re-examination. A reading of the opinions will leave no doubt but that both cases were correctly decided.

Commissioner German in his opinion in the Napier case cites no authority for his statement that one approaching a railroad track is never in a position of peril until he reaches a point where he cannot stop short of the track. The only case cited as supporting the language quoted from the Parks case is the case of Texas & P. Ry. Co. v. Brown, 142 Texas 385, 181 S. W. 2d 68. The first case cited in the Brown case in support of the holding there made is the Shetter case, which, on the point under discussion, had long since been repudiated as a precedent.

To give our sanction to the rule advocated by respondent would be virtually to destroy the doctrine of discovered peril. It would mean that a duty to act never arises until there is certainty of injury although there is every reason to believe that injury probably will occur. It would also mean that no duty to act arises unless the person in peril is unable to extricate himself therefrom although there is full realization that he is unlikely to do so. Such is not the basis of the humanitarian doctrine of discovered peril.

If no vehicle were in a position of peril until it reached a point where it was impossible to stop it short of collision, the time for acting would rarely be sufficient to impose a duty to act. If a pedestrian were never in a position of peril until he took the last step placing himself in front of a moving train or vehicle, then he could never recover under the doctrine of discovered peril because until he took the last and final step it lay in his power not to take it.

If a person on a railroad track, physically able to move, were never in a position of peril, however inattentive, until it was too late to remove himself from the path of a train bearing down upon him, then the duty of the trainmen to act to prevent injury would never arise until the last second before impact although they realized that the person was unaware of the train’s approach. Whether approached from the standpoint of ruling legal precedents in this state or from the standpoint of sound and logical analysis, we conclude that defendant’s proposition cannot be sustained.

When the fireman first discovered the approach of the automobile he had a right to assume that the driver would stop it before reaching the crossing. Both ordinary care for his own safety and

Article 6701d, Sec. 86(

d) V.A.C.S. required that he stop it. But the testimony of the fireman was some evidence of probative force that he knew and realized that the plaintiff would not likely stop but would probably continue to pursue his course until he drove upon the track. It was also some evidence of probative force that he knew and realized that the continued pursuit by the plaintiff of his dangerous course would in all probability lead to his injury unless, as agents of the defendant, he and the engineer acted to prevent the injury.

We have demonstrated that the evidence raised the issue that this knowledge and realization came at a time when by the exercise of ordinary care in the use of means at hand, i.e., a prompt application of the emergency brakes, the injury might have been prevented. So realizing, it became the duty of the fireman and of the engineer to act promptly in applying the brakes although the plaintiff, if he had become aware of the train’s approach, might conceivably have stopped his automobile before reaching the track.

In view of the likelihood of another trial, we add that in our opinion the trial judge did not abuse his discretion in admitting the testimony of the witness Black. The objections urged to his testimony go to its weight rather than to its admissibility. The judgments of the Court of Civil Appeals and of the trial court are reversed and the cause is remanded to the trial court for retrial. Opinion delivered October 1, 1952. All emphasis supplied.