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

• Decision Date: 21 January 1903
• Citation: 71 S.W. 772
• Parties: INTERNATIONAL & G. N. R. CO. v. IVES.
• Court: Texas Court of Appeals

71 S.W. 772

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

Court of Civil Appeals of Texas.

January 21, 1903.

Appeal from district court, Travis county; F. G. Morris, Judge.

Action by Ira C. Ives against the International & Great Northern Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

S. R. Fisher and N. A. Stedman, for appellant. Z. T. Fulmore and Hogg & Robertson, for appellee.

STREETMAN, J.

Appellee recovered a judgment in this case for injuries received by him at a public road crossing on appellant's railroad. The court submitted the duty of appellant to give signals in approaching the crossing, as follows: "The law imposes on railroad companies the duty of blowing a steam whistle and ringing a bell on its engine at 80 rods before crossing a public road, and the continuous ringing of such bell thereafter until such crossing has been made; and a failure to observe either of these requirements would be negligence. If the jury believe from the evidence that the defendant's agents or employés in charge of the engine which was pulling the train that struck plaintiff's team and wagon failed to blow a steam whistle at 80 rods from the crossing of the public road where plaintiff was struck, or that defendant failed to ring a bell on said engine 80 rods from said crossing, or failed to continue the ringing of such bell during the passage of said distance and until said crossing was made, then they will find that defendant was guilty of negligence. If the jury do not find from the evidence that defendant's agents and servants failed either to blow said whistle at 80 rods from said crossing, or that defendant failed to ring a bell on its engine at 80 rods from said crossing, or that it failed to continue the ringing of said bell from 80 rods from said crossing until said crossing was passed by its said engine, the jury will return a verdict for the defendant." Appellant complains that its duty with reference to giving signals was not correctly stated in these charges. Rev. St. art. 4507, provides: "A bell of at least thirty pounds weight and a steam whistle shall be placed on each locomotive engine, and the whistle shall be blown and the bell rung at the distance of at least eighty rods from the place where the railroad shall cross any public road or street, and such bell shall be kept ringing until it shall have crossed such public road or stopped." The meaning of this provision, as stated by our supreme court, is "that, in order to comply with the statute, the whistle must be blown at some point sufficiently near the crossing to be reasonably calculated to give warning to persons about to use the same; such point not to be nearer to such crossing than eighty rods." Railway Co. v. O'Neal, 91 Tex. 671, 47 S. W. 95. In that case the court charged that the whistle must be blown within 80 rods of the crossing, and the charge was held to be erroneous. In this case the court repeatedly tells the jury that the whistle must be blown "at eighty rods" from the crossing. The jury might properly have understood from this charge that it would be negligence, as a matter of law, if the whistle was not blown exactly at the distance of 80 rods from the crossing. They might have believed that it was blown sufficiently near the crossing to give warning to persons about to use the crossing, but, if the...