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

• Decision Date: 27 June 1906
• Citation: 96 S.W. 56
• Parties: INTERNATIONAL & G. N. R. CO. v. PLOEGER et al.
• Court: Texas Court of Appeals

96 S.W. 56

INTERNATIONAL & G. N. R. CO. v. PLOEGER et al.

Court of Civil Appeals of Texas.

June 27, 1906.

Appeal from District Court, Williamson County; V. L. Brooks, Judge.

Action by Laura E. Ploeger and others against the International & Great Northern Railroad Company. On remand from the Supreme Court with answers to certified questions. Reversed and remanded.

S. R. Fisher, J. H. Tallichet, and N. A. Stedman, for appellant. O. E. Roberts, for appellee.

FISHER, C. J.

The judgment heretofore rendered by this court reversing and remanding this cause will be set aside, and the judgment will again be reversed and remanded; which judgment shall become operative and effective from this date, to wit, June 27, 1906. It is not necessary that we should go over and repeat the nature and result of this suit and the issues involved, as they are sufficiently stated in the original opinion. At a previous day of this term this court (93 S. W. 226) reversed and remanded, on account of the error of the trial court in refusing an instruction requested by appellant to the effect that if the jury believed that the deceased entered upon the track immediately in front of the rapidly moving train, to find for the defendant. There was a dissent from this conclusion, whereupon the difference was certified to the Supreme Court. That court in its opinion delivered May 23, 1906 (93 S. W. 722), held with the dissenting justice, on the ground that the doctrine announced in Sanches v. Railway, 88 Tex. 117, 30 S. W. 431, applied, which is to the effect that the engineer, when he sees one preparing to go upon the track in front of a moving train, so as to put himself in a place of danger, must sound the whistle or cause the bell to ring as a warning of the approach of the train. In the Sanches Case it was held that the injured party in going on the track was guilty of contributory negligence, but as the engineer testified that he saw him when he started toward the track, discovered peril would commence from that time, and a warning of the approach of the train should have been given. Sanches had his back towards the train, and did not hear or see its approach. And it is clear that if the facts had shown that he was aware of the near approach of the train, the court would never have held that the duty rested upon the engineer to give him notice or warning of a condition which he was well aware of. The Sanches Case announces a familiar principle, and we have no war to make with that doctrine; but its application to the facts of this case is so unauthorized and opposed to the deductions and conclusions to be drawn from the evidence in the record, that the ruling of the Supreme Court can only be explained upon the ground that the certificate of dissent did not state all the facts, or that the court's attention was not pointedly called to the distinguishing feature of this case from the Sanches Case, or through the rush of business the facts were not sufficiently inquired into in order to see that the Sanches Case did not apply.

No one will doubt the proposition that if Sanches saw or heard the near approach of the train that struck him when he started towards the track, the Supreme Court would not have held that any duty rested upon the engineer to give him warning by sounding the whistle or ringing the bell. The duty to give the warning is to let one who is about to place himself in a position of peril know of the approaching train, but if he is aware of this fact, no duty to ring the bell or sound the whistle would exist, unless it is to be expected that the noise so occasioned would produce the same effect upon a man as it would upon a cow near the track; that is, occasion a condition of fright, with the hopeful expectation that he would curl his metaphorical tail over his back and "light out" for home. Although it may be expected that there will be occasional exhibitions of judicial eccentricity, it is clear that the Supreme Court in this case intended no such absurdity as this. The question raised by the charge which this court held should have been submitted was in accord with the theory advanced by the evidence of the defendant that the deceased was not walking on the track when struck, but was on the public road or street, and approaching the track with a view of going over the same immediately in front of the rapidly approaching train. When he was first seen by the engineer he was within a few feet of the track, stooping over going towards it, and was within about 70 feet of the rapidly approaching train, and was immediately struck when he reached the track. This was in the day time, between 11 and 12 o'clock, and there was nothing whatever to obstruct the view of the train, and the evidence shows that there was no impairment of his ability to see or hear. The position of the deceased and the evidence relating to the physical condition and surroundings, and the nearness of the train when he started to go upon the track, shows beyond dispute that the deceased saw or heard the train, and must, in the nature of things, have discovered its near approach when first seen by the engineer, and when it became apparent that he was moving towards the track. To hold otherwise, would be to shut our eyes to the physical facts and to base ruling upon an assumption opposed to reason. And if it had occurred to us that the contention that the Sanches Case was applicable...