ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WATTS et al., 216 S.W. 391

GREENWOOD, J. This action was brought by defendants in error, who are the widow and children of Jno. C. Watts, against plaintiff in error, St. Louis Southwestern Railway Company of Texas, to recover damages arising from the death of Jno. C. Watts, who was run over by a switch engine of plaintiff in error, while he was lying on its track at Texarkana, where he had been thrown or had fallen, in alighting from a moving train of the Texas & Pacific Railway Company, which he had boarded as an escort of his daughter, who was a passenger.

The questions presented here require us to determine: First, what duty, with respect to the deceased, devolved on plaintiff in error; and, second, whether the defense of contributory negligence was available to plaintiff in error. The charge' of the trial court authorized the jury to find for defendants in error if they found, in substance, that Jno. C. Watts was making a use of the track, which came within plaintiff in error’s implied permission, and if they found that the servants of plaintiff in error operating the switch engine, by the exercise of ordinary care, could have discovered the presence of Jno. O.

Watts on the track, and could have avoided striking him, and that plaintiff in error’s servants failed to exercise such care, and that such failure was negligence, and that the death of Jno. G. Watts was caused by such negligence, and that Jno. G. Watts, on account of injuries previously received, was unable to remove himself from the track or did not realize the danger of remaining thereon. The trial court refused to instruct the jury to find for plaintiff in error if its employés used such care to discover the presence of Jno. C.

Watts on the track and to avoid injuring him, as an ordinarily prudent person would have used under like circumstances at a place not used by licenses; and also refused to submit the defense of contributory negligence, and rendered judgment, on the jury’s findings, for defendants in error, which was affirmed by the Court of Civil Appeals. We do not think that plaintiff in error’s duty to the deceased arose from its license to pedestrians to use the footpath in cross•ing its track. As said by the Supreme Court of Maryland, in Western Md. v.

Kehoe, 83 Md. 434, 35 Atl. 90: “His right to use it as a crossing gave to him no right to use it for a totally different purpose, and his right to use it at all was obviously qualified by an obligation on his part to exercise proper care himself in using it, and hence his right to use it with cfue care gave him no right to' use it recklessly.

His righf was a right of transit along the highway and* across the tracks, and to that extent the duty of the company to use 'due care not to abridge or invade that right was imperative, and carried with it the obligation to exercise that degree of diligence which might be necessary to avoid an injury to him while he was in the lawful enjoyment or pursuit of that right.

This obligation of the company did not go further, or require the company to anticipate, either that the plaintiff would he guilty of negligence in using the highway, or that he would use it, or attempt to use it, for a purpose not within the limits of' his admitted right.” In T. & P. Ry. Co. v. Watkins, 88 Tex. 24, 29 S.

W. 233, the duty of railway companies, in operating engines and trains, towards persons on their tracks', regardless of the rights of such persons as licensees, was carefully expressed in the following language: “The true rule is that it is the duty of the servants of the railroad company operating its trains to use reasonable care and caution to discover persons on its track, and a failure to use such care and caution is negligence on the part of such company, for which it is liable in damages for an injury resulting from such negligence, unless such liability is defeated by the contributory negligence of the person injured, or of the person seeking to recover for such injury, and the circumstances under which the party injured went upon the track are merely evidence upon the issue of contributory negligence.

If such circumstances show that the party injured was a wrongdoer or trespasser at the time of the injury, the issue of contributory negligence is, as a general rule, established as a matter of law; but not so in all cases.

It results from the above, that it was the duty of the railroad to use ordinary or reasonable care to discover and warn defendant in error, whether she be considered a trespasser or a mere licensee, and a failure to use such care was negligence, rendering the railroad liable for such damages as resulted therefrom, unless under all the circumstances defendant in error was guilty, .of. negligence contributing proximately to her injury.’’ The rule stated is supported by the opin-. ions in Railway v. Sympkins, 54 Tex. 618, 38 Am. Rep. 632, and Railway v. Hewitt, 67 Tex. 479, 3 S. W. 705, 60 Am.

Rep. 32, and in many subsequent cases. We regard the rule as wise and salutary. It should control in the disposition of this case. The opinion in M., K. & T. Ry. Co. of Texas v. Malone, 102 Tex. 273, 115 S. W. 1158, should not be regarded as changing the rule. It was held in that case that Malone was not making such use of the railroad track and bridge as came within the railroad company’s implied permission. It was therefore determined that the verdict and judgment were erroneous, which were predicated on such use and the breach of a consequent duty.

It was further decided that Malone’s evidence showed .that he was guilty of contributory negligence as a matter of law. Since contributory negligence defeats a recovery under the rule stated in the Watkins Case, it was quite unnecessary to consider the duty which the railroad company owed to Malone independent of implied permission to him to be on the track and bridge; and the citation of the Watkins Case shows a recognition of the principles there laid down, and is quite inconsistent with an intent to overrule it.

The facts in this record require that the issue of contributory negligence on the part of the deceased be submitted to the jury. It cannot be rightly said that the act of alighting from the passenger train had culminated when the deceased first became unconscious.

While his act must have been a proximate cause of his injury, in order to defeat a recovery herein, it cannot be said to conclusively appear that one, under all the circumstances, might not reasonably have anticipated injury from a subsequent passing train, as well as precedent immediate injury, as a natural and probable consequence of alighting from the moving train on or near a railroad track. .

The law which makes contributory negligence available as a defense in an action for an injury sustained through failure on thp part of railway employes, in operating an engine or cars, to exercise ordinary care to discover the person injured and to avdid the-infliction of injury, is too well settled in this state to warrant us in departing therefrom. In T. & P. Ry. Co. v. Staggs, 90 Tex. 461, 39 S.

W. 296, it was said: “If deceased was guilty of contributory negligence, his widow and children could not recover for failure to see him upon the track, or to discover his danger, because in such case their right of action would rest upon the negligence of the defendant, to which contributory negligence of the deceased would constitute a good defense.” At the term preceding that in which the Staggs Case was decided, the'court had carefully pointed out that it was only in cases of discovered peril that the defense of contributory negligence was not permissible, Judge Denman saying that the principle depriving the party inflicting an injury of that defense “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 use of the means and agencies then at hand.

If he had no such knowledge, the new duty was not imposed, though it be clear that by the exercise of reasonable care he might have acquired same.” T. & P. Ry. Co. v. Breadow, 90 Tex. 31, 36 S. W. 412. Again it is said in Morgan & Bros. v. M., K. & T. Ry. Co. of Texas, 108 Tex. 334, 193 S. W. 134, referring to the doctrine of discovered peril: “With us, the doctrine defeats contributory negligence on the part of the plaintiff only when the danger arising therefrom is imminent, is actually discovered by the defendant, and may be avérted by the means at the latter’s command. Texas & P. Ry. Co. v.

Breadow, 90 Tex. 26, 36 S. W. 410.” It is ordered that the judgments of the district court and of the Court of Civil Appeals be reversed, and that this cause be remanded for another trial. other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes