Saldana v. Galveston, H. & S.A. Ry. Co.

• Decision Date: 15 October 1890
• Citation: 43 F. 862
• Court: U.S. District Court — Western District of Texas
• Parties: SALDANA v. GALVESTON, H. & S.A. RY. CO.

43 F. 862

SALDANA v. GALVESTON, H. & S.A. RY. CO.

United States Circuit Court, W.D. Texas, El Paso Division.

October 15, 1890

C. H McGinnis and N. B. Bendy, for plaintiff.

Davis Beall & Kemp, for defendant.

MAXEY J., (charging jury.)

The plaintiff, Rafael Saldana, brings suit to recover of the defendant railway company damages for personal injuries alleged to have been inflicted upon him by one of the defendant's engines on the 6th day of September last, at the city of El Paso, Tex. It is in effect charged in the petition that the plaintiff's injuries resulted from the negligence of the defendant's servants and employes under substantially the following circumstances, to-wit: That plaintiff, in returning to El Paso, with two donkeys loaded with wood, desired to pass over a portion of defendant's road with his donkeys in order to cross a certain 'hollow or gulch;' that before stepping upon the track he looked in both directions, east and west, to ascertain whether the track was clear, so that he could proceed along it without danger to himself and his animals, and after taking all necessary precautions, as he alleges, for his safety, he then got on defendant's said railway track with his said two donkeys to pass over said 'hollow or gulch;' that immediately upon getting on the track he discovered, at a distance of about 360 feet, a switch engine of defendant approaching at a rapid rate, dashing around a curve of the track; that the engine gave no signal of its approach, by bell or whistle, but that, at said distance of about 360 feet, one of the defendant's employes on the engine 'waved his hands to him, (plaintiff,) motioning to plaintiff to remove his donkeys from the track, which he was endeavoring to do, believing, after receiving said signal that said switch engine would check up long enough for him to do so; but before he could remove the hindmost one from said track, the said switch engine * * * neither stopped nor slackened its speed, but negligently, willfully, recklessly and wantonly, with great force and speed, ran against one of plaintiff's donkeys, which was in the lead, and threw him against the hindmost one, thus knocking both off the track, * * * and thus struck plaintiff, as he was on the side of the track, in his attempt to escape, knocked him down, and run over him, and cut off one of his feet, and broke and crushed the other leg, and otherwise bruised and injured plaintiff. ' It is further alleged that defendant was also guilty of negligence, resulting in plaintiff's injuries, in failing to ring the locomotive bell or blow the whistle in approaching the public crossing, which is alleged to be about 120 yards west from the place of the accident. The court has thus given you a brief statement of the plaintiff's cause of action. In its answer the defendant denies, generally, all allegations in the petition contained, and further interposes, in bar of the action, the plea of contributive negligence on the part of plaintiff. The plaintiff attributing his injuries to the negligence of the defendant's servants as the direct cause of the same, it is incumbent upon him to establish by proof the truth of the charge he prefers, for if his injuries did not result directly from the negligence of the company's servants and employes, he would not be entitled to a recovery. What, then, is negligence? As defined by the supreme court, in Railroad Co. v. Jones, it 'is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person, under the existing circumstances, would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the exigencies of the occasion.' 95 U.S. 441, 442.

But in reference to the question of negligence, we must, in this case, proceed further than simply to inquire into the failure of duty on the part of the employes of defendant. We must look to the testimony, and ascertain whether the plaintiff performed the duty which the law enjoined upon him. The defendant insists that he (the plaintiff) was the negligent party, and that he was the author of his misfortunes; and thus we have presented by the pleadings the concurrent negligence of both parties; negligence on the part of the defendant, and contributive negligence on the part of the plaintiff. In this connection it is further held by the supreme court, in the case cited, that 'one who, by his negligence, has brought an injury upon himself, cannot recover damages for it. Such is the rule of the civil and of the common law. A plaintiff, in such cases, is entitled to no relief. But where the defendant has been guilty of negligence also, in the same connection, the result depends upon the facts. The question in such cases is (1) whether the damage was occasioned entirely by the negligence or improper conduct of the defendant; or, (2) whether the plaintiff himself so far contributed to the misfortune, by his own negligence or want of ordinary care and caution, that but for such negligence or want of care and caution on his part the misfortune would not have happened. In the former case the plaintiff is entitled to recover, in the latter he is not. ' Id. 442. Now, gentlemen, look to the facts and, applying to them the rules of law above announced, determine the question of negligence as between the parties. It has been clearly shown, not only by the testimony of the defendant, but also by that of plaintiff, that just prior to the accident, while the plaintiff was on the railway track, driving his two donkeys up and along the track in the direction of the switch engine, he discovered the engine approaching at a distance, according to the testimony of the plaintiff himself, of 40 or 50 yards. Some of the witnesses, however, place it at a greater and some at a less distance. That the plaintiff was walking up the track, in view of the advancing engine, there is no doubt. It is further conceded that at the point where plaintiff got upon the track there was neither a street nor public crossing, the public crossing being something over 200 yards west. From the place of accident, looking east, the switch engine, on account of the curve in the road, could be seen only about 117 yards, and persons on the engine could see an equal distance looking west. As to the rate of speed of the engine prior to and at the time of the accident the testimony is conflicting, and you must satisfy yourselves upon that point from a consideration of all the facts and circumstances in evidence. The plaintiff further testified that an employe of the company on the engine waved his hand to him when the engine was 40 or 50 yards distant. The plaintiff insists that after he saw the approaching engine he did what he could to remove himself from the impending danger, but that he was unable to do so owing to the short interval which elapsed between the time he saw the engine and the collision which ensued. It is urged, however, by the defendant that the plaintiff could have easily protected himself by stepping on either side of the track, but that, instead of making his escape from a known danger, he was engaged in the effort to drive his donkeys from the track until it was too late to save himself. In view of the above...