Houston and Texas Central Railroad Co. v. William S. Smith, 52 Tex. 178

Bonner, Associate Justice.

The first assignment of error is, that “ the court erred in overruling defendant’s demurrer to plaintiff’s petition, because plaintiff’s petition showed that at the time of his alleged injuries he "was walking along defendant’s track, using the same for his own purposes, thereby placing himself in the wrong and contributing to the injuries sustained.” The general law of contributory negligence may be thus briefly stated: “ One who is injured by the mere negligence of another cannot recover at law or in equity any compensation for his injury if he, by his own or his agent’s ordinary negligence or willful wrong, proximately contributed to produce the injury of which he complains, so that but for his concurring and cooperating fault the injury would not have happened to him, except where the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him.” (Shear. & Red. on Neg., sec. 25.) To entitle the plaintiff to recover he must have used ordinaiy care to have prevented the injury; that is, that degree ■ of watchfulness and precaution which persons of ordinary care and prudence would naturally and reasonably use under similar circumstances of danger.

If, however, in consequence of the want of ordinary care on the part of plaintiff, he was guilty of such negligence as proximately contributed to his danger, so that it both concurred in the transaction and cooperated in the injury, then he cannot recover. This mutual, contributory, or cooperative negligence or wrong exists when the act producing the injury would not have happened but for the negligence or wrong of both parties. The question is not whether the fault of the plaintiff caused the injury, but whether it contributed to it.

The rule of contributory negligence is based not so much upon considerations of what is just to the defendant as upon those of public policy, which require that every one should take reasonable care of his own person and property, and upon the further principle, that when both parties are in fault, the law, as a general rule, will withhold its aid and leave them to the consequences of théir own wrong.

If, after the impending danger becomes known to the defendant, he should then fail to use such ordinary care as would have prevented the injury, and the same results as a consequence thereof, then another principle of law governs, and the defendant would be liable; and this liability would be increased if, under such circumstances, the injury was inflicted willfully and wantonly, in a manner showing a reckless disregard of life or property. (Shear. & Red. on Neg., ch. 8, and authorities cited in notes.) In the pleading under consideration, it is affirmatively averred, both that the defendant failed to give the usual signals of warning, and that the injury was maliciously inflicted.

These allegations, being taken as true, were sufficient to sustain plaintiff’s cause of action on general demurrer, and the court did not err in overruling the same.

The second assignment of error is, that “the court erred in the third paragraph of the charge, wherein the jury were instructed : 6 If, however, plaintiff was guilty of some slight degree of negligence not amounting to a want of ordinary care, that is, such care as is usually exercised by prudent men in like circumstances, and the agents and employees of defendant failed to exercise ordinary care, in consequence of which plaintiff was injured, find lor plaintiff; ’ because the instruction was not applicable under the facts proved, since the evidence proved the absence of ordinary care on the part of plaintiff, and established gross negligence on his part; and further, because the instruction given is not law.” The law presumes that a person walking upon a railroad track will leave the same in time to prevent injury from an approaching train of which he has knowledge, or should have, by the ordinary use of the senses of hearing and seeing, and the managers of the train may act upon this presumption. (Railroad Co. v.

Miller, 25 Mich., 279; Indianapolis and Vincennes Railroad Co. v.

McClaren, 62 Ind., 566.) According to the evidence of the plaintiff' himself, he walked upon the railroad track three hundred yards, although there was a street or road upon the right side of the same which lie could have used; ho was not paying attention to anything, and he had been drinking, and might have been intoxicated; and the other testimony showed that he was in this condition, and also that the alarm-whistle sounded for a distance varying, according to the different witnesses, from two hundred yards to twenty feet of the place where the injury was inflicted.

If “comparative” negligence can in any event avail the plaintiff, and that it cannot is now generally held by the most important courts in America, (Shear. & Red. on Neg., sec. 37, citing several authorities in note 5,) yet, in our opinion; the evidence in this case, as applied to the law, did not warrant the court in assuming as a hypothesis for the third paragraph of the charge that the negligence of the plaintiff' was slight only, and consequently the second assigned error was well taken. (Shear. & Red. on Neg., secs. 488, 491, and note 5 to sec. 29 ; Brand v. Railroad Co., 8 Barb., 368; Railroad Co. v.

Heilman, 49 Penn., 60; Butterfield v. Railroad Co., 10 Allen, 532.) [Opinion delivered November 18, 1879.] As the question involved in the third error assigned will not probably arise upon another trial, it will not be considered.

The fourth error assigned is: “The court erred in not allowing the witness Volenta to answer the questions asked by the defendant on cross - examination, ‘Did plaintiff Smith have time, after the alarm-signal was given, to get off the track to avoid the injury ? ’ and ‘ Could a man have jumped off the track after the signal-whistle blew ? ’ as set forth in the bill of exceptions, because said questions were material and relevant under defendant’s plea of contributory negligence.” Except where the witness testifies as an expert, the correct practice, as a general rule, is for the witness to state the facts and let the jury draw the proper deductions arising therefrom.

The fifth error, assigned is, that the court erred in overruling the motion for a new trial. The fourth ground of the motion was, that “the verdict was contrary to the evidence, in finding that plaintiff was not guilty of contributory negligence.” Without commenting upon the weight of the testimony, as it might prejudice the rights of the plaintiff upon another trial, we simply state that the facts and circumstances as now developed by the record, when applied to the law of contributory negligence, did not warrant the verdict, and that the motion for a new trial should have been granted.

For the errors above indicated, the judgment is reversed and the cause remanded. Eeversed and remanded.