Missouri, Kansas & Texas Railway Company v. J. K. P. Thomas and Wife, 87 Tex. 282

DEEMAE, Associate Justice. Thomas and wife sued the railroad to recover damages resulting from injuries received by the wife from the overturning of a wagon in which she was riding with others along a public road over which the railroad track passed on a trestle about fifteen feet high, the overturning of the wagon being alleged to have been caused by the team becoming frightened at the noise of an engine which ran onto said trestle, without ringing the bell or blowing the whistle, just as the wagon was passing under the trestle.

The court below charged the jury, that it was the duty of the employes of the railroad to give the signals required by statute when approaching the point where said road ran under said trestle, and that if the injuries of the wife were caused by the failure to give such signals, plaintiffs were entitled to recover. The railroad in this court assigns said charge as error, in that the statute requiring signals to be given on approaching a crossing of a public road does not apply to any crossing except at grade. The statute reads as follows: “Art. 4232.

A bell of at least thirty pounds weight or a steam whistle shall be placed on each locomotive engine, and the whistle shall be blown or the bell rung at the distance of at least eighty rods from the place where the railroad shall cross any public road or street, and such bell shall be kept ringing until it shall have crossed such public road or street, and each locomotive engine approaching a place where two lines of railway cross each other shall, before reaching such railroad crossing, be brought to a full stop; and any engineer having charge of such engine, and neglecting to comply with any of the provisions of this act, shall be fined in any snm not less than five dollars nor more than one hundred dollars for such neglect, and the corporation operating such railroad shall be liable for all damages which shall be sustained by any person by reason of any such neglect.” Acts 1883, p. 28.

The effect of the charge complained of was to inform the jury that if the injuries of the wife were caused by a failure of the employes of the railroad to give the statutory signals, such failure was negligence per se. It took from the jury the question of fact as to whether it was negligence for the railroad to run the engine over the public road on the trestle without giving any warning of its approach, and made defendant’s liability depend upon the sole question as to whether it failed to give the particular signals prescribed by the statute, and whether such failure caused the injuries.

If the statute above quoted does not apply to the class of eases where the railroad does not cross the public road at grade, but runs under or over it, then the charge complained of is error.

Section 13 of “An Act to regulate railroad companies,” approved February 7, 1853, was adopted as

article 4232 of the Revised Statutes, and was not amended until the Act of 1883, above quoted. Until amended, it required the ringing of the bell or blowing of the whistle until the road or street was crossed. If limited to crossings at grade, this requirement is a reasonable and wise safeguard against collisions which may occur at anytime before the engine has entirely crossed the street or road, but if applied to places where the public road runs over the railroad on a bridge, or under a trestle, as in this case, it would greatly imperil persons passing in vehicles over or under the track.

It would be difficult to devise more effectual means of frightening teams than to ring the bells or blow the whistles of the engines passing immediately over or under them. If the statute applies, the engineer has no discretion to stop giving the prescribed signals when about to pass over a public road or street on a trestle or under a bridge forming part of a public road or street, but is compelled, under severe penalty, to continue giving the signal until his engine “shall have crossed such road or street,” although such signals can accomplish no good, and are fraught with danger to the travelling public.

The Act of 1883 does not require the whistle to be continually blown until the road or street is crossed, but does require the ringing of the bell, and therefore does not affect the above reasoning. Again, the Act of 1883 above quoted uses the word “cross” twice as a verb in the same sentence, without any intimation that it is used in a different sense in one place from what it is in another.

The last use of the word evidently refers only to cases where railroads cross each other at grade, for it would be entirely useless and annoying to the travelling public to require a train to come to a full stop before passing under or over another railroad’s track, as no collision is, in such cases, possible. It follows, that by incorporating this amendment into the same sentence with the retained portion of

section 13 of the Act of 1853, the Legislature has construed the Act of 1853 as being applicable only to crossings at grade. We are of opinion that the statute is not applicable to the crossing in question, and that the court erred in charging the jury as above stated. It does not necessarily follow that the railroad company is not liable to plaintiffs for the injuries inflicted npon his wife by the overturning of the wagon.

Independent of the statute, the law imposes upon a railroad the duty of exercising reasonable care in the running of its trains to avoid injuring others, and the failure so to do is negligence. Whether the failure to give warning of the approach of a train is under all the circumstances of a case, negligence, must, in the absence of a statute, be left to the jury as a question of fact. For the error in the charge, the judgment is reversed and the cause remanded. Reversed and remanded. Delivered November 12, 1894.