Missouri, K. & T. Ry. Co. of Texas v. Saunders

• Decision Date: 08 January 1908
• Citation: 106 S.W. 321
• Court: Texas Supreme Court
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. SAUNDERS.

106 S.W. 321

MISSOURI, K. & T. RY. CO. OF TEXAS v. SAUNDERS.

Supreme Court of Texas.

January 8, 1908.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by H. T. Saunders against the Missouri, Kansas & Texas Railway Company of Texas. There was a judgment of the Court of Civil Appeals (103 S. W. 457) affirming a judgment for plaintiff, and defendant brings error. Reversed and remanded.

Coke, Miller & Coke and Head, Dillard & Head, for plaintiff in error. McGrady & McMahon, for defendant in error.

WILLIAMS, J.

Defendant in error, who was plaintiff below, was struck by an engine of the plaintiff in error at the town of Trenton, and recovered the judgment now before us for the injuries thereby inflicted. Two dirt roads cross the track of the defendant, one 150 or 200 yards south, and the other some distance north of the station. On the morning when he was hurt the plaintiff drove some cattle out of a field southeast of the crossing to the south of the station. The animals passed the track going west, and went north upon the right of way and plaintiff, when he reached the crossing, also turned north, but followed the track, intending to drive the cattle westward, towards his home. He moved in a run or rapid walk along the end of the ties until he reached the gravel passenger platform of defendant, and then passed along its edge nearest the track. When he was 150 or 175 yards from the southern crossing, he was overtaken and struck by an engine drawing a passenger train which came rapidly from the south. Defendant had three whistling posts south of its depot, the farthest for the station signal, the next for the southern crossing, and the third for the northern crossing. Some of the evidence tended to show that only the station signal was given and that plaintiff did not hear it, while probably he would have heard signals for the crossings if they had been given. The trial court gave in its charge the provision of the statute requiring the giving of signals for crossings, and instructed that a failure to give them would be negligence, for which plaintiff would be entitled to recover if he was hurt as the proximate result of such omission, and was not himself guilty of negligence. The giving of this instruction was the reason for the granting of this writ of error.

The question as to the correctness of the charge depends upon the further question whether or not the failure to give crossing signals was negligence per se as to one situated as plaintiff was. The decisions of this court leave no doubt that such a failure is by law made negligence with respect to those for whose protection the statute was designed. As to others the omission may or may not constitute negligence; in fact, the question depending on the circumstances of the particular case, and being one for the jury, and not for the court, to determine. The charge under consideration took from the jury the question whether or not the omission to give the signals was, with reference to the plaintiff, a negligent one, and it can be justified only if it be found that the statute imposed the duty for the protection of one in a position such as that of plaintiff. There are many decisions in other states based upon statutes like ours which would sustain the charge and the opinion of the Court of Civil Appeals approving it, and there are quite as many, if not more, that hold to the contrary. They are cited in Elliott on Railroads, §§ 1150, 1158, 1264; 2 Thompson on Negligence, §§ 1560, 1561. The decisions of this court hold with the latter view. I. & G. N. R. R. Co. v. Gray, 65 Tex. 32; M., K. & T. Ry. Co. v. Thomas, 87 Tex. 282, 28 S. W. 343; T. & P. Ry. Co. v. Shoemaker, 98 Tex. 455, 84 S. W. 1049. The statute requires the blowing of the whistle and the ringing of the bell at least 80 rods "from the place where the railroad shall cross any public road or street," and the continued ringing of the bell until the engine shall have crossed the street or stopped. It imposes a penalty upon any engineer neglecting to comply, and makes the company "liable for all damages which shall be sustained by any person by reason of such neglect." These signals are required because of the nature of the place, a crossing of the railroad by a road or street which others have the right to occupy and use with their persons and property. The deduction seems plain that the protection is given to those who are exercising their right with respect to the road or street. The requirement is not adapted to the protection of others; the warning being required only at a certain distance from the highway and until it has been passed. The existence of the crossing fixes the relation to the railway of the road or street and of those exercising the right to use it, and the provision is a definite protection to them; but, if we attempt to apply it to others, to persons or property whose position is not influenced by the existence of the crossing, or any right they have to use it, we have no definite guide. We can see a cogent reason why this protection should be given to persons or property passing along the road or street, but it would be difficult to find a reason for giving such a protection to one person near a crossing and withholding it from another farther away, when the crossing has no influence whatever over the situation of either.

The rights of those using the road or street crossing the railway should not be narrowly restricted as is sometimes attempted. It is not at all necessary to hold that they must be at the point of intersection. Perils are encountered in the use of roads which cross railways other than those of collisions with passing cars; but they result from the situation of the highway in relation to...