H. & T. C. R'Y Co. v. Sympkins

• Decision Date: 29 March 1881
• Docket Number: Case No. 429.
• Citation: 54 Tex. 615
• Parties: THE H. & T. C. R'Y CO. v. WM. J. SYMPKINS.
• Court: Texas Supreme Court

54 Tex. 615

THE H. & T. C. R'Y CO.

v.WM. J. SYMPKINS.

Case No. 429.

Supreme Court of Texas.

Mar. 29, 1881.

APPEAL from Harris. Tried below before the Hon. James Masterson.

The opinion states the case.

Geo. Goldthwaite, for appellant.

I. The court erred in so much of the first paragraph of the charge as instructed the jury: “But if the evidence satisfy the jury that the agents, employees or servants in charge were guilty of gross negligence--by which you will understand the absence of such ordinary and proper care as was their duty to have observed; or, if the evidence satisfy you that defendant's cars were not properly manned and equipped, and if the same had been the accident would not have happened. If so you find the facts, find for plaintiff.”

II. The plaintiff was not in a position to complain of defendant and hold it responsible for not having its cars properly manned and equipped.

III. That a railway company should have its train properly manned and equipped, is a duty which it owes to its passengers and persons rightfully on its track; it is not a duty owing to persons who are carelessly and wrongfully on the track.

IV. The charge was calculated to mislead the jurors, and did mislead them, inducing them to the conclusion that the defendant owed the same measure of duty and accountability to strangers and persons negligently and wrongfully on its railway track, that it owed to its passengers and persons rightfully on its track. Shearman & Redfield on Negligence, secs. 487, 493; Wharton on Negligence, secs. 389, 803; Tonewanda R. R. Co. v. Munger, 5 Denio, 266; same case affirmed in 4 Comstock, 349; Law Register, N. S., vol. 7, 450; Railroad Co. v. Worton, 24 Penn. St., 468; Railroad Co. v. Spearen, 47 Penn. St., 300; Nicholson v. Railroad Co., 41 N. Y., 529;Terry v. Railroad Co., 22 Barb., 586; Railroad Co. v. Hummell, 44 Penn. St., 378; Brown v. Lynn, 7 Casey (Penn. St.), 510; Reeves v. Railroad Co., 6 Penn. St., 454; Gillis v. Railroad Co., 59 Penn. St., 142; Kay v. Railroad Co., 65 Penn. St., 273; Herring v. Railroad Co., 10 Ired. (N. C.) Law, 402; Richardson v. Railroad Co., 8 Rich. (S. C.) Law, 120; Finlayson v. Railroad Co., 1 Dillon, 583.

V. The court erred in withholding from the consideration of the jury the question of contributory negligence on the part of the plaintiff, and particularly the question as to whether he was drunk; especially after the submission of the question whether he was laboring under a providential infliction in the way of a fit. 52 Tex., 173; Shearman & Redfield on Negligence, § 25; Railroad Company v. Hutchison, 47 Ill., 410.

Turner and Baker & Botts, also for appellant.

F. W. Henderson, for appellee.--Although defendant is not bound to that degree of diligence to one who is on its road-bed at a place where there is no public crossing, as to passengers, or to persons who are upon the road-bed at a public crossing, yet defendant cannot run their cars with their eyes shut or blindfolded, or without using at least ordinary diligence, and if by using proper diligence such as a reasonable man would have used, the accident would not have happened, then the defendants are liable even to a trespasser. Norris v. Litchfield, 35 N. H.; Vaughan v. Manlove, 3 Bing. N. C., 486; Maryatt v. Stanley, 1 M. & G., 558; Chicago & Northwestern R. R. Co. v. Barrie, 55 Ill., 226, 1870;Ill. Cent. R. R. Co. v. Baches, Id., 379;La Fayette & Indianapolis R. R. Co. v. Shrier, 6 Ind., 141, 1855;Northern Ind. R. R. Co. v. Martin, 10 Ind., 460, 1858;Central R. R. Co. v. Davis, 19 Ga., 437, 1826;Galena & Chicago Union R. R. Co. v. Jacobs, 20 Ill., 478, 1858; Philadelphia & Reading R. R. Co. v. Hummell, 44 Penn. St., 375, 1863; East Tenn. & Georgia R. R. Co. v. St. John, 5 Sneed (Tenn.), 524, 1858; Brown v. Hannibal & St. Joseph R. R. Co., 50 Ind., 451, 1872; Macon & Western R. R. Co. v. Davis, 18 Ga., 679, 1855;Illinois Central R. R. Co. v. Hutchison, 47 Ill., 408, 1868;Daley v. Norwich & Worcester R. R. Co., 26 Conn., 591, 1868.

Gustave Cook, also for appellee.

GOULD, ASSOCIATE JUSTICE.

On the 10th of April, 1873, at noon, W. J. Sympkins, lying in a state of insensibility on the road-bed of the Central Railway, at a point where there was a long curve, and about 190 steps from a public crossing, was run over by the cars, whereby he lost his right arm, and was otherwise bruised. On his behalf, it is claimed that whilst walking on the railroad track he was providentially stricken down by a fit; that at the point on the curve where he fell, the engineer, by keeping a proper look-out, could have discovered him at about 300 steps distance, in ample time to have stopped the train and avoided the accident. On the part of the railway company, it is asserted that Sympkins' fit was nothing more than one of intoxication; that at all events he was negligent originally in walking on the track, and was wrongfully there; that he was lying outside of the rails in such a way that the engineer neither could nor did discover him in time to avoid running over him, he having immediately used every means to stop the train.

In its charge the court told the jury: “If the evidence satisfy you that the engineer could, by the use of due and proper care and attention, have discovered the plaintiff on the track in time to have stopped without running over him, then his not doing so is such negligence as will render defendant company liable to plaintiff.”

The defendant asked sundry charges, embodying the proposition, that, unless the engineer actually saw Sympkins a sufficient length of time and distance to stop the train and prevent the injury, the company was not liable; and denying that, as to persons wrongfully on the track, the law imposed on the railroad any duty to keep a look-out, or any liability except for “willful or wanton negligence on the part of its agents.” The following charge was also amongst those asked and refused:

“It is in evidence before you that the plaintiff had on the same day taken one or more drinks of liquor, and that he never before that day, nor since, has had a fit. It is your peculiar province to determine whether or not that fit was a fit of intoxication. If he was in a fit of intoxication, or drunk, at the time of the accident, and the accident was occasioned in any degree by that fit of intoxication or drunkenness, then and in that case the defendant is not liable, and the plaintiff is not entitled to recover, unless the accident happened and was occasioned by the wanton or willful negligence of the engineer, or those in charge of the train.”

The plaintiff recovered a judgment, and the questions here presented arise mainly on the charge. We do not assent to the proposition that a railroad company may not become liable to one who is run over and injured by reason of the want of watchfulness of its servants, although such person may have been originally a trespasser on the track. If a party be wrongfully on the track under such circumstances, or being there, acts in such a way as to be himself a proximate cause of his own injury, he will be precluded from recovery on grounds of public policy, as being himself guilty of contributory negligence. Although the company's agents may have failed in proper watchfulness, the injured person is regarded as being himself too directly a cause of the injury to be allowed to complain. It is not that no wrong has been done by the company in the negligence of its agents, but that the injured party is precluded from complaining of that wrong.

A man goes upon the railroad track at a time and place when no danger is nigh, and whilst there, by some accident or providential cause becomes insensible, and so remains perhaps for hours, until the time for a train comes round.

Although he originally goes on the track wrongfully, it is under circumstances threatening no direct injury, nor, being on the track, does he do anything “positive or negative to contribute to the immediate injury.” Baltimore & O. R. R. Co. v. State, use of Trainor, 33 Md., 554. If the engineer on the approaching...