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

• Decision Date: 09 February 1883
• Docket Number: Case No. 3866.
• Citation: 60 Tex. 142
• Court: Texas Supreme Court
• Parties: H. & T. C. R'Y CO. v. J. F. WILSON.

60 Tex. 142

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

v.J. F. WILSON.

Case No. 3866.

Supreme Court of Texas.

Feb. 9, 1883.

ERROR from Collin. Tried below before the Hon. R. R. Gaines.

Suit against the railroad company to recover damages for personal injuries, the killing of a horse and the destruction of a wagon. The case as made was that, about the 20th day of August, 1875, plaintiff was driving his wagon along a public highway, which crossed the railroad track in the city of McKinney; that on the side from which he approached the track it was obstructed by freight cars standing on the siding; that he looked and listened for an approaching train before he undertook to cross, but neither saw nor heard any. About the time he was on the main track the engine struck his wagon, utterly destroying it, and killing one horse, also injuring himself severely about the head and shoulders; that there was no bell rung or whistle sounded by those operating the train, until just about the time of the collision.

The defense mainly relied on was that Wilson by his negligence contributed to the injury. Verdict and judgment for Wilson for $1,000.

The errors assigned and relied upon were: (1) that the court erred in refusing instructions asked; (2) the verdict was not supported by the evidence, and was excessive.

R. De Armond, for plaintiff in error.

Throckmorton, Brown & Bro., for defendant in error.

WATTS, J. COM. APP.

Plaintiff in error insists that the court erred in refusing to give certain instructions to the effect that if the defendant in error was not in a position to see whether there was an approaching train, that then it was his duty to stop his wagon and listen for such trains before undertaking to make the crossing; and a failure to do this would preclude a recovery by him for any injury received, notwithstanding those operating the train were negligent in omitting to ring the bell or sound the whistle.

The court had instructed the jury that it was the duty of defendant in error, before attempting to cross the railroad track, to use the ordinary and proper precautions appropriate to the situation, and to look out and listen for approaching trains; and that a failure to do this would constitute concurrent negligence, and preclude a recovery by him.

As will be seen, the real distinction in the instructions given and those refused is that by the latter the defendant in error was required, before attempting the crossing, to stop his wagon so as to listen and look out for approaching trains. Plaintiff in error cites two cases from Pennsylvania in support of the proposition embodied in the refused charges--the Pittsburg, Fort Wayne & Chicago R. R. Co. v. Dunn, 56 Pa. St., 280, and the Lehigh Valley Railroad Co. v. Hall, 61 Pa. St., 361. In the first, the court below charged the jury that “when a traveler on a public highway approaches a public crossing, it is his duty to stop and look out and listen for trains before going upon the track, and, if he fails to do so, such failure is not merely evidence of negligence, but the law declares it to be negligence,” etc. No point was made in the supreme court upon that branch of the charge, and therefore no comments were made by that court with respect to the point. However, in the other case, the court remarked that, “It is true that it was the duty of the deceased, before attempting to cross the railroad, to stop and look both ways and listen for approaching trains.” Doubtless the statute then in force in that state prescribed these precautionary measures; for, in the absence of statute, the question of negligence is one of fact to be determined from the evidence in each particular case.

It is a familiar and general rule, that, where the statute requires an act to be done, a failure to do it as...