Austin & N. W. Ry. Co. v. McElmurry

• Citation: 33 S.W. 249
• Parties: AUSTIN & N. W. RY. CO. v. McELMURRY.
• Decision Date: 11 December 1895
• Court: Texas Court of Appeals

33 S.W. 249

AUSTIN & N. W. RY. CO. v. McELMURRY.

Court of Civil Appeals of Texas.

December 11, 1895.

Appeal from district court, Travis county; James H. Robertson, Judge.

Action by J. D. McElmurry against the

Austin & North Western Railway Company for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed.

Fisher & Townes, for appellant. Walton & Granberry and W. W. Wood, for appellee.

KEY, J.

1. The ninth paragraph of the court's charge reads thus: "But, on the other hand, if the jury find that at the time and place of the collision the defendant's agents and employés failed to blow the whistle or ring the bell, as required by law, but that the plaintiff, by the use of ordinary care, would have discovered the approach of the train in time to have avoided injury, the plaintiff cannot recover, unless the jury find that the failure to ring the bell or blow the whistle as required by law was sufficient to cause a man of ordinary care to relax his diligence and care, and that as a matter of fact such failure did cause his injury, in which case the defendant would be liable. Again, if the jury find from the evidence that after plaintiff got upon the railroad track, or so near thereto that he could not extricate himself from danger, the defendant's employés in charge of said train discovered plaintiff's position of danger in time, by the use of ordinary care, to have stopped the train in time to have avoided the collision, and failed to do so, then the defendant would be liable." The clause, "Unless the jury find that the failure to ring the bell or blow the whistle as required by law was sufficient to cause a man of ordinary care to relax his diligence and care, and that as a matter of fact such failure did cause his injury, in which case the defendant would be liable," carries with it an implication that, if the conditions therein referred to were shown to have existed, the plaintiff was under no obligation to exercise ordinary care. Such is not the law. It is true that under one state of facts a person may not be required to do the same thing to protect himself that would be required under another and different state of facts. But he is at all times required to exercise such care as a person of ordinary prudence would have exercised under the same or like circumstances; and, in law, such care is denominated "ordinary care." By that expression, as used in legal parlance, is not meant such care as is usually exercised under ordinary circumstances, or regardless of circumstances, but such care as ordinarily prudent persons would exercise under the circumstances of the particular case; and the duty to exercise this care is a continuing and ever-present duty, however much conditions and circumstances may change. The phrase above quoted should have been omitted from the charge. Its tendency was to place an improper qualification upon an otherwise correct statement of the law of contributory negligence, and we cannot say...