Gulf, C. & S. F. Ry. Co. v. Smith

• Decision Date: 03 December 1894
• Parties: GULF, C. & S. F. RY. CO. v. SMITH et al.
• Court: Texas Supreme Court

28 S.W. 520

GULF, C. & S. F. RY. CO. v. SMITH et al.

Supreme Court of Texas.

December 3, 1894.

Error to court of civil appeals, Second supreme judicial district.

Action by M. J. Smith and another against

the Gulf, Colorado & Santa Fé Railway Company to recover damages for injuries causing the death of Charles Smith, deceased. From a judgment of the court of civil appeals (26 S. W. 644) affirming a judgment for plaintiffs, defendant brings error. Reversed.

J. W. Terry, for plaintiff in error. R. V. Bell and Stuart & Lewis, for defendants in error.

BROWN J.

M. J. Smith, the wife, and Julia T. Smith, the child, of Charles Smith, deceased, sued the defendant, the Gulf, Colorado & Santa Fé Railway Company, to recover damages for the death of the said Charles Smith, alleged to have been caused by defendant's negligence. From the conclusions of fact found by the court of civil appeals we make the following statement as to the manner in which Smith lost his life: Charles Smith was walking upon the track of the defendant in the city of Gainesville, when, hearing an engine coming behind him, he stepped off the track until the engine and cars attached passed him, when he stepped back on the track. A car had been detached from, and was following, the train, which ran over Smith, and inflicted wounds upon him, from the effects of which he died in a very short time. When deceased was struck by the car he was either on the track at the crossing on Belcher street, in the city of Gainesville, or on the track near to the street, at a point where the railroad track was commonly used by the public as a passway for people on foot, with the knowledge and consent of the defendant. Belcher street was a public street of that city. The employés of defendant who were in charge of the train were making a "flying" or "running" switch for the purpose of setting the caboose — the rear car — in on a side track south of the crossing on said street. In making the switch the train was started at a high rate of speed about 300 feet north of the crossing, and the rear car was detached about 70 feet north of the street. When the detached car reached the point where it struck Smith, it was running at a rate of speed greater than six miles per hour. An ordinance of the city then in force prohibited the running of cars and engines in the city at a rate of speed exceeding six miles per hour. There was a rule of the defendant company prohibiting the making of "flying" or "running" switches inside of the city limits. The brake on the detached car was defective, so that it would not stop the car in a reasonable distance. The brakeman on the detached car saw Smith, and understood his danger, in time to have stopped the car before it struck him, if the brake had been in good condition, but failed to do so. The testimony is conflicting as to the speed of the train, and the fact that the employé saw the deceased in time to have stopped the car before it struck him; but we make the statement in accordance with the facts found by the court of civil appeals. The case was tried before a jury, and verdict rendered for the plaintiffs, upon which judgment was entered, which, upon appeal, was affirmed by the court of civil appeals.

Plaintiff in error presents, in its application for writ of error, fourteen objections to the judgment of the court of civil appeals, but we think that none of them are well taken except three, which we will examine.

The thirteenth assignment of error, as presented to the court of civil appeals, questioned the correctness of the first section of the charge given by the court, and the eighteenth assignment presents for consideration the sixth section of the charge, which we will consider together. The eighth charge we consider as having an important bearing upon the two in question, and we here insert them, as follows: "You are instructed as to the law of this case as follows, viz.: First. You are instructed that the law requires those in charge of railway engines and trains to use great care and prudence in operating them at streets and public crossings, to discover persons who may be upon same, and to avoid damage to their persons and property, and if, by the want of such care and prudence, injury is inflicted upon others without the fault of such others, the company will be liable for such injury; and if you find from the evidence that Charles Smith, at the time of his injury, was upon the track of the defendant company in Belcher street, in the city of Gainesville, and that the defendant's agents and servants in charge of its car, by the exercise of the degree of care above stated, would have discovered said Smith upon said track in time to have avoided injuring him, and that by reason of the failure to use such care they failed to discover said Smith, and because of such failure said car was permitted to run upon and kill said Smith, without fault or negligence upon his part, and that but for such failure, if any, upon the part of defendant's agents and servants, such injury would not have happened, then you will find for plaintiffs." "Sixth. If you find from the evidence that the place where said Smith was struck by defendant's car was on the defendant's track at a place not a public street or crossing, but at a place which was commonly used by the public as a passway, and such user was had with the knowledge of the company and without objection on its part, and if such user was known to the agents and servants of defendant managing and operating said car, and if said agents and servants, by the exercise of the care required in section 1 of these instructions, could have discovered said Smith upon said track in time to have avoided injuring him, and that by reason of the failure to use such care they failed to discover said Smith, and because of such failure said car was permitted to run upon and kill said Smith, without fault or negligence upon his part, and that but for such failure, if any, upon the part of defendant's agents and servants, such injury would not have happened, then you will find for plaintiffs." "Eighth. The law requires every person to use ordinary care for his own safety and preservation; and if you should find that said Charles Smith did not use ordinary care to protect himself from injury, and that he would not have been killed had he used ordinary care, then the plaintiffs are not entitled to recover, notwithstanding you may find that the defendant was guilty of either or all of the wrongs alleged against it. By `ordinary care' is meant such care as an ordinarily prudent and cautious person, similarly situated as said Smith was, would have exercised under the circumstances."

The first sentence of the first section of the court's charge to the jury prescribes "great care and prudence" as the degree of "care" required of the employés of the defendant at the public crossing of the street; and in the sixth charge the same rule is announced as that which must be observed at a place on the track which is commonly used by the public with the knowledge and consent of the railroad company. Webster defines "great" to be: "More than ordinary in degree; very considerable in degree; as, to use great caution; to be in great pain." Shearman & Redfield's Negligence (section 47) divides care into three degrees: (1) Slight care; (2) ordinary care; and (3) great care, — which last is defined to be: "That degree of care usually bestowed upon the matter in hand by the most competent, conscientious, prudent, and careful class of persons engaged in the business to which such matters belong, no matter how few such persons may be, if they are numerous enough to have a recognized existence as a class." "Great care," therefore, is a degree of care greater than that usually bestowed by persons of ordinary prudence under like circumstances. It is evident that the court intended to make this distinction in the charge given, and the jury must have so understood it, since in the eighth section of the charge the court instructs the jury that the deceased was bound to use ordinary care, and proceeds to define ordinary care to be that degree of care which "a person of ordinary prudence would use under like circumstances." In the section cited above from Shearman & Redfield's Negligence, the author says: "In every case it must be understood as an essential part of the definition that the test applied is the kind of care usually exercised by persons of that class referred to, under circumstances similar to those of the case under consideration." The object of instructing the jury as to the degree of care is to furnish them with a standard by which to judge of the acts of the party whose conduct is in question. In this case the standard set up by the court, with which the acts of defendant's agents and employés were to be compared, was "the most competent and conscientious, prudent and careful, class of persons engaged in that business, no matter how few in number, if they constitute a class." This imposed the highest degree of care known to the law, which is the degree of care prescribed for the government of railroad companies towards their passengers. Shear. & R. Neg. § 51; Railroad Co. v. Gorbett, 49 Tex. 573. The same rule does not apply to passengers and persons lawfully crossing or going upon a railroad track. The passenger under a contract has committed himself to the safe-keeping of the carrier, having no part in the management of the means of conveyance, while one approaching a crossing or walking lawfully upon a track is a stranger to the railroad company in a contractual sense, exercising a right, equal to that of the railroad, to use the track at that point; he is in no sense in the care of the railroad company, but is charged with the duty of caring for his own safety. The rights and duties of the railroad company and such person are mutual, it being the duty of each to exercise that degree of care that a man of...