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

• Decision Date: 27 January 1888
• Citation: 7 S.W. 227
• Parties: GULF, C. & S. F. RY. CO. v. GASCAMP.
• Court: Texas Supreme Court

7 S.W. 227

GULF, C. & S. F. RY. CO. v. GASCAMP.

Supreme Court of Texas.

January 27, 1888.

Appeal from district court, Washington county; J. B. McFARLAND, Judge.

Action against defendant railway company by H. W. Gascamp for personal injuries sustained while attempting to cross a bridge over defendant's right of way. Verdict and judgment for plaintiff, and defendant appeals.

Garrett, Searcy & Bryan, for appellant. C. R. Breedlow, for appellee.

GAINES, J.

This was an action, brought by appellee against appellant, to recover damages for personal injuries alleged to have accrued to the plaintiff by reason of the failure of the defendant to keep in repair a bridge upon a public road where the highway crossed its track. There was testimony showing that the bridge was out of repair, and that it was dangerous to cross it, and the plaintiff knew of this. But it also appeared that many persons habitually passed over on horseback and in vehicles, and, so far as the witnesses knew, no injury had occurred previous to that complained of by plaintiff. He testified himself to the defective character of the bridge, and to his knowledge of the fact, and also that this was the only public road from his house to the city of Brenham. He further swore that he was on his way to Brenham, on the day of the accident, riding on horseback, and that, in attempting to cross the bridge, a plank which was loose and rotten, became displaced and frightened his horse, and caused him to be thrown across the iron of the railroad track, thereby inflicting upon him serious personal injuries. The defendant attempted to show that the bridge was kept in proper repair, but the evidence to the contrary was more than sufficient to sustain the verdict for plaintiff on this issue. No one was present when the accident occurred but the plaintiff, and he testified to no unusual care in attempting to cross over the bridge.

It is now assigned as error that the verdict of the jury is contrary to the evidence, because the testimony shows "that the plaintiff was guilty of contributory negligence in attempting to ride across a bridge that he knew was defective and dangerous." The issue of contributory negligence was submitted to the jury, and has by the verdict been determined in plaintiff's favor. This is conclusive of the question, unless we can say that the act of plaintiff was negligence in law, or at least that it tended so strongly to establish negligence on his part that the verdict should not be permitted to stand. According to the rule in this court, in order that an act shall be deemed negligent per se, it must have been done contrary to a statutory duty, or it must appear so opposed to the dictates of common prudence that we can say, without hesitation or doubt, that no careful person would have committed it. It is apparent that this cannot be said of the plaintiff's conduct in this case. It is well settled that, if a highway or street be obstructed or out of repair, and this be known to a passenger, he cannot be held faultless if he threw himself upon the obstruction or encountered the danger, — provided another way of reaching his destination be open to him, which is safe and not much longer than that he prefers to travel. City of Erie v. Magill, 101 Pa. St. 616; Schaefler v. Sandusky, 33 Ohio St. 246; City of Centralia v. Krouse, 64 Ill. 19; Parkhill v. Brighton, 61 Iowa, 101, 15 N. W. Rep. 853; Wilson v. Charlestown, 8 Allen, 137. As far as our research has extended, these are the cases which most strongly support the position taken by appellant. But, in each of them, the proposition is stated with the important qualification that there must be another safe way by which the danger may be avoided; and it is to be noted that in every one stress is laid upon the point that there was another convenient route. The reason is that a prudent person may choose to pass along an unsafe highway, rather than abandon his trip, although he would have avoided the route if another had been open to him. It is accordingly held, on the other hand, that if the passenger or traveler have no other convenient way, the mere fact that he takes the chances of a known danger, and attempts a passage, is not controlling proof of his negligence. Whether the act be negligent or not, depends upon the circumstances attending it; and the question is for the determination of the jury. City Council v. Wright, 72 Ala. 411; City of Huntington v. Breen, 77 Ind. 29; Turnpike Co. v. Jackson, 86 Ind. 111; Commissioners v. Burgess, 61 Md. 29; Dewire v. Bailey, ...