International & G. N. R. Co. v. Edwards

• Decision Date: 09 May 1906
• Citation: 93 S.W. 106
• Parties: INTERNATIONAL & G. N. R. CO. v. EDWARDS.
• Court: Texas Supreme Court

93 S.W. 106

INTERNATIONAL & G. N. R. CO. v. EDWARDS.

Supreme Court of Texas.

May 9, 1906.

Error from Court of Civil Appeals of Third Supreme Judicial District.

Action by Will Edwards against the International & Great Northern Railroad Company. From a judgment of the Court of Civil Appeals (91 S. W. 640), affirming a judgment in favor of plaintiff, defendant brings error. Reversed, and judgment rendered for defendant.

Baker & Thomas and N. A. Stedman, for plaintiff in error. S. E. Stratton and J. E. Yantis, for defendant in error.

WILLIAMS, J.

The judgment before us was recovered by defendant in error, who was plaintiff below, on account of personal injuries sustained by him from being struck by the engine of a passing train of plaintiff in error, near Waco, at the crossing of a public country road over the railroad. The evidence, without contradiction, shows that the plaintiff walked along the road at night, approaching the railroad obliquely with his side towards it, until he came near the crossing when he turned with the road across the track, and was struck as he reached the center thereof. The train was visible by its electric headlight upon a straight track for a mile or more before it reached the crossing and the noise of its motion was plainly audible. Plaintiff admits that, before stepping on the track, he neither looked, nor listened for the train, although he was familiar with the crossing, and knew of the frequent passing of trains; and that he could have seen and heard it, had he done so. All of the other evidence is to the same effect. He relies alone upon the fact, which the evidence is sufficient to prove, that the whistle was not blown nor the bell rung as required by the statute, claiming that he was listening for those signals, and, because he did not hear them, did not look for the train nor pay attention to the noise it made.

The law is well settled that a traveler approaching a railroad crossing must exercise ordinary prudence in going upon the track to see that he may do so with safety. He cannot excuse the absence of all care by showing that those in charge of a train have also been guilty of negligence. This is the precise attitude of the plaintiff, when he claims that he was not bound to look out for himself until the statutory signals were given. His claim cannot be admitted without denying the rule which exacted the duty of due care on his part, a duty as binding on him as was the duty of giving signals binding on the defendant. The...