MARSHALL & E. T. RY. CO. v. PETTY, 180 S.W. 105

PHILLIPS, C. J. J. M. Petty brought this suit for damages on account of injuries sustained in his attempting, on horseback, to pass under a railroad bridge over a public road along which he was traveling, by riding against the bridge and striking his head upon it. Originally it appears the bridge was high enough above the road, but dirt and sand had been washed under it so as to raise the level of the road, making the distance between it and the lower timbers of the bridge only about six feet, clearly not sufficient to admit the clear passage of a man of ordinary size on horseback.

The plaintiff was about six feet tall. Astride of an ordinary horse, the elevation of his head would be materially above six feet. It was stated in the testimony that in that situation the lowest timber of the bridge would strike him about the chin. It was daytime, and he was riding in a walk. He was struck on the forehead. No other explanation of the accident is found in the plaintiff’s testimony, the only witness on the subject, than that it consisted in his riding against the bridge with his head high enough to strike it.

There have been two trials of the case; the testimony of the plaintiff being by deposition in each instance.

Upon the first his statement was that he was 79 years of age, and his eyesight had been bad for several years; that as he approached the bridge, riding along the road leaning slightly forward in his saddle, he could see it in a general way, but thought he could ride under it all right; that he saw numerous horse and wagon tracks ahead of him, and it appeared to him, without making any close inspection, that he could ride under it, as the rest of the people apparently had done so, and while so riding under the bridge some heavy piece of timber or hard substance struck him a violent blow upon the head, and seemed to press his neck down between his shoulders; that he had no information the bridge was too low or in any way dangerous, or that one could not ride under it; that he had not been along there in a long time.

He further stated that he could see where other travel had preceded him along the road; that he was sitting in his saddle inclined a little forward, somewhat stooped, when his head and neck struck the timber of the bridge; that the blow pressed him down against the back of his saddle, crushed or doubled up, so to speak. The judgment rendered in his favor upon that trial was reversed by the honorable Court of Civil Appeals because of an erroneous instruction.

As to whether the plaintiff should be held guilty of contributory negligence as a matter of law, the court said it was not satisfied with the state of the evidence, and that it had doubt about the proper ruling on the question, but would not pass upon it in view of its having reversed the judgment upon another ground. 134 S. W. 406. Following this a second deposition of the plaintiff was taken.

In this deposition he explained what he meant by the statement in the first deposition that he saw the bridge in a general way, as follows: “I saw the bridge in a general way as I would see anything else near me that I had no special occasion to observe.

I mean by the term ‘in a general way’ that I did not observe the bridge as to its length or height or dimensions; I did not notice the size or height of the timbers composing same, nor its distance from the ground. 1 thought I could ride under it because the road ran under it; that is, if I gave the matter any thought.” Both depositions were introduced on the second trial, and the testimony of the plaintiff as to the manner of the accident, above recited, was uncontroverted. The trial resulted in a verdict and judgment in his favor for $2,500; affirmed by the Court- of Civil Appeals. 145 S. W. 1195.

This, to our minds, is a plain case of an injury directly caused by the. plaintiff’s own negligence. It is unbelievable that a man of six feet in height, upon a horse of ordinary size, able, in that situation, to see, and in fact viewing, Norse tracks in the road ahead of him, proceeding slowly in a walk, with nothing to distract his attention, could, in the open day, ride up against or into so conspicuous an object as a railroad bridge, directly in front of him across the road and only six feet above the ground, so as to cause injury to himself, and be in the exercise of ordinary care.

We have stated in full the plaintiff’s testimony regarding the accident. He knew the bridge was just in front of him, because he says he saw it as he approached it. He says that he did not observe its dimensions or distance from the ground, but his statement remains that he saw it as he rode toward it. He was therefore immediately aware of its presence and location. With it as low and his head as high as the testimony establishes, in an attempt to ride under it a collision, without effort on his part to avoid it, was inevitable, as, in fact, occurred.

There is no suggestion in his testimony that he made any such effort. It is evident, on the contrary, that he maintained the same position of his body when- he reached the bridge and started under it as when riding toward it. He approached it “leaning slightly forward in his saddle,” and likewise he was sitting in his saddle, to use his own words, "inclined a little forward, somewhat stooped,” when he struck it with his head and neck. There is not an intimation that he lowered his head, or did anything to avoid striking the bridge after reaching it and in passing under it.

Granting, as was his testimony, that observing the bridge in only a general way as he approached it leaning slightly forward in his saddle, he thought he could ride under it with safety, and that a man of common prudence in the same situation might, before reaching it, have formed the same judgment, yet, riding as slowly as the plaintiff was, only in a walk, it was bound to have been manifest to him when he actually got to the bridge, since it was then right before his eyes, that if he kept on in that position his head would strike it. Notwithstanding this, it is apparent that he rode right on against it.

There can be no room for reasonable difference of opinion respecting a man’s act in walking up to an obstruction which is seen and it is necessarily known will strike him if he goes on, and, without any effort to avoid it, walking on into it. That is what the plaintiff’s act amounted to. The case is not analogous to the mere use of a highway which is dangerous, as to which, its use, though it is known to be unsafe, is not conclusive proof of negligence, illustrated by cases of the character of Railway Company v. Gasscamp, 69 Tex. 545, 7 S. W. 227, and Railway Company v. Smith, 49 Tex. Civ. App. 1, 107 S. W. 638.

The plaintiff had an unquestioned right to the use of the highway beneath the bridge; and a mere attempt to ride under the bridge, even with knowledge that it was as low as it was, would not itself establish that he was negligent. But that is not the question here.

It is: Gould he, seeing the bridge, ride up to it in a walk, thereby, before passing under it, necessarily reaching a position where it was obvious that he would strike it unless he lowered his head, and, with no evidence showing that his attention was in any way distracted, or that he made any effort to avoid striking it, be entitled to damages because he rode on and hit his head against it? We think not, because, undoubtedly, no man of ordinary prudence would have made the attempt in that way.

The judgments of the district court and Court of Civil Appeals are reversed, and the cause is here rendered for the plaintiff in error. (@s»Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes