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

• Decision Date: 01 May 1883
• Docket Number: Case No. 3624.
• Citation: 59 Tex. 373
• Court: Texas Supreme Court
• Parties: H. & T. C. R'Y CO. v. EDWARD RICHARDS.

59 Tex. 373

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

v.EDWARD RICHARDS.

Case No. 3624.

Supreme Court of Texas.

May 1, 1883.

ERROR from Collin. Tried below before the Hon. Joseph Bledsoe.

Suit by defendant in error to recover damages for injuries received from the alleged carelessness and gross negligence of the defendant's servants in running its locomotive and cars against him, whereby he was thrown from the track, his arm and leg broken, and he was permanently disabled. He alleged that in consequence of his injuries he suffered great pain, and incurred heavy expense by loss of time, medical bills, expenses for nursing and attendance, etc., laying his damages at $10,000.

The defendant answered by a general demurrer and a general denial.

Plaintiff amended by averring that he used due care in looking and listening for the approach of the train while on the track, and that the place at which he was injured was near the crossing of a public wagon road which was used by the traveling public. He also charges that there was no head-light burning.

Defendant amended, charging that, if plaintiff was injured as alleged, it was by reason of his own negligence, and not from any want of care of the defendant; that plaintiff's presence on the track was not known or suspected, although all reasonable care and watchfulness were exercised by defendant.

Verdict and judgment for plaintiff for $1,000.

The court charged that, if plaintiff was injured by the want of proper care on the part of defendant's servants, he would be entitled to recover, unless his injuries resulted from his own want of proper care and diligence.

2d. If plaintiff was using the railroad track as a highway between stations by traveling on it, he was a trespasser and not entitled to recover, unless defendant wantonly propelled the train against him, or was guilty of such gross negligence as would amount to an intention to injure.

3d. Running a train at night without a head-light would be gross negligence; but whether it would amount to wilful or wanton misconduct must be determined by the circumstances of the case. The absence of a head-light alone would not be such gross negligence as would amount to an intention to injure, as to a person using the track as a foot-way at such a time. The burden of proving the negligence or wanton misconduct was upon plaintiff.

Several charges were asked by both plaintiff and defendant, and were refused.

From the statement of facts it appears that about eight o'clock at night the plaintiff started from section house No. 40, in Collin county, to Plano, which is two miles further south. He walked on the track, stepping on the ends of the ties on the outside of the rails, to the left. The night was very dark, a strong wind blowing in his face and a drizzling rain falling. He had been a section hand on the road; he knew that the express train was due, and (such was his own testimony) at every step he listened and looked back for the train, which was running south. He was sober, and his senses of sight and hearing were good. Suddenly, without hearing or seeing the train, he was knocked off into the ditch, where he lay till morning--his arm and leg broken, and suffering from various hurts and bruises inflicted. The injury was inflicted some four or five hundred yards south of section house No. 40. He says that if there had been a head-light on the train he certainly would have seen it. Several witnesses testify that they saw the same train some six or eight miles further south and it had no head-light. The engineer testifies that he kept a careful look-out, did not see any one on the track, or suspect that any one was there, and did not know of the accident till long afterwards. He lighted the head-light before dark, far to the north of this place, and kept it burning all the time. Several witnesses testify that at section house No. 40, only four or five hundred yards away, the head-light was burning, and another testifies that at Plano, less than two miles south of this place, the head-light was visible.

R. De Armand, for plaintiff in error, cited Shearman & Redfield on Negligence, sec. 448; 53 Pa. St., 250; 24 Pa. St., 465; 2 Cincinnati Sup. Ct. Rep., 268.

J. H. Jenkins, for defendant in error, cited Field on Damages, p. 168, and note 25; Id., p. 169, note 20, and authorities therein cited; 2 Redf. on Railways (4th ed.), p. 31; Whart. on Neg., sec. 388, and authorities cited; Lacey's Dig. R'y Dec., p. 460, arts. 150, 151; Id., p. 462, art. 164; Id., p. 475, art. 325; 7th Am. R. W. Rep., p. 130; 36 Md., 366;50 Mo., 461;51 Mo., 190;37 Mo., 537; 19 Conn., 507; 22 Vt., 213;24 Vt., 487; 13 Ga., 86; 1 Ald. & El. (N. S.), 29.

DELANY, J. COM. APP.

It is well established in this state that he who seeks redress for the wrongful act of another must use due diligence to prevent loss or injury therefrom. Brandon v. Manufacturing Co., 51 Tex., 121. And where the plaintiff has, by his own want of proper care, contributed to the injury of which he complains, a recovery will be denied him. H. & T. C. R'y Co. v. Gorbett, 49 Tex., 573; R. R. Co. v. Randall, 50 Tex., 254; R. R. Co. v. Le Gierse, 51 Tex., 189, and many later cases.

It is also held in other states that if the plaintiff, in setting out his cause of action, shows that his own negligence has contributed materially to the injury of which he complains, his petition will be bad on demurrer, although the defendant also may have been guilty of negligence. Ream v. Pittsburg, etc., R. R. Co., 49 Ind., 93; 1 Thomp. on Neg., p. 449. In the case from Indiana “a demurrer was sustained to a petition on the ground of contributory negligence, which alleged that plaintiff's intestate with others were riding for pleasure on a hand-car one thick, foggy night, which was run down by an extra freight train going at the rate of forty miles an hour, without a head-light burning, and giving no signals of its approach.” Thompson, supra.

The plaintiff thus “makes the defense of contributive negligence for the defendant in stating his own case.” Chief Justice Roberts in T. & P. R. R. Co. v. Murphy, 46 Tex., 362.

The case before us presents strong proof of contributory negligence on the part of the plaintiff. The plaintiff had been a section hand on the road, and was perfectly familiar with all the modes of its operation; yet upon a dark, rainy night, with a strong wind blowing in his face, he traveled upon the track between stations, knowing that the express train was coming behind him; that it was due, and might be upon him at any moment. The only specific allegation of negligence on the part of the defendant which he makes is that there was no head-light burning on the engine, and this allegation is not fully sustained by the evidence.

The court in the general charge treated the absence of a head-light as an instance of gross negligence on the part of the defendant...