Missouri, K. & T. Ry. Co. of Texas v. Reynolds
| Citation | 122 S.W. 531 |
| Parties | MISSOURI, K. & T. RY. CO. OF TEXAS v. REYNOLDS. |
| Decision Date | 24 November 1909 |
| Court | Supreme Court of Texas |
Action by C. T. Reynolds against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment of the Court of Civil Appeals affirming a judgment for plaintiff (115 S. W. 340), defendant brings error. Reversed and remanded.
Coke, Miller & Coke, Jno. C. Wall, and Head, Dillard, Smith & Head, for plaintiff in error. Wolfe, Hore & Maxey, for defendant in error.
This writ of error is from a judgment affirmed by the Court of Civil Appeals in favor of defendant in error (plaintiff below) against plaintiff in error for damages sustained by the former from being struck by an engine of the railroad company under the following circumstances: Reynolds walked east along a street in Denison to its intersection with another street running north and south along which run several tracks of the defendant. He stopped upon one of these tracks to await the passing of a train upon another track in front of him. Just at this time, about 15 or 20 feet from plaintiff, a switch engine was backing north along the track upon which he stood, moving two to four miles an hour. Three employés rode upon a foot board at the end of the tender, and saw plaintiff as he stopped in the perilous position, and knew that he was in danger of being struck. Their testimony is to the effect that each of them at once gave warning cries to plaintiff, one of them directed another to turn the angle cock, near which the latter stood, so as to set the air brakes, which the latter at once tried to do, while the third, seeing that plaintiff did not heed their shouts, leaned forward to shove him out of the path of the engine, in which the employé so far succeeded that only one of plaintiff's legs was caught and crushed. According to this testimony the man who attempted to set the brakes could not do so sooner than they were set by the engineer—too late to prevent the injury. The plaintiff was not seen from the cab, but the engineer says he heard the halloo of one of the men on the foot board, and made a service application, and that then the fireman hallooed and he made an emergency application. The plaintiff had then been knocked down.
The plaintiff introduced testimony of experts tending to show that the engine, moving at the rate of speed stated by some of the witnesses, could have been stopped by the proper use of the air brakes in a shorter distance than that traversed by it before it struck plaintiff, and inferentially that the servants did not make proper effort to stop. This will serve to show the state of the evidence sufficiently for the purposes of the decision.
The error for which this writ was granted will appear in the following instruction given to the jury; the objectionable feature appearing also in other parts of the charge: "* * * But, on the other hand, if such employé, while so operating an engine, sees a person standing on such track and it reasonably appears that such person is not aware of the approach of the engine, and it becomes reasonably apparent that he will not leave the track before the engine reaches him, it is the duty of such employé to use every means then reasonably within his power in the exercise of ordinary care to stop such engine and avoid striking such person." In this the court determines for the jury as a matter of law that the effort of the defendant's employés must have been directed to the stopping of the engine. There is no rule of law that requires that specific thing. What the law requires is the exercise of the care to avoid injury which persons of ordinary prudence would use in such emergencies. This care must, of course, be proportioned to the danger, but what acts and expedients constitute it in a given situation is a question to be determined by...
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...and those responding to emergencies were subject to the ordinary-negligence duty. See, e.g. , Mo., Kan. & Tex. Ry. Co. of Tex. v. Reynolds , 103 Tex. 31, 122 S.W. 531, 532 (1909) ("What the law requires is the exercise of the care to avoid injury which persons of ordinary prudence would use......
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