Tex. & P. R'Y Co. v. Wright

• Decision Date: 25 November 1884
• Docket Number: Case No. 1720.
• Citation: 62 Tex. 515
• Court: Texas Supreme Court
• Parties: THE TEXAS & P. R'Y CO. v. R. F. WRIGHT.

62 Tex. 515

THE TEXAS & P. R'Y CO.

v.R. F. WRIGHT.

Case No. 1720.

Supreme Court of Texas.

Nov. 25, 1884.

APPEAL from Kaufman. Tried below before the Hon. Green J. Clark.

On January 18, 1883, appellee brought his suit, alleging in substance that on the 30th day of November, 1883, in the city of Terrell, by reason of the negligence of defendant's servants in charge of defendant's backing train, it collided with plaintiff's wagon while passing over Virginia street, destroying the wagon, and inflicting on himself serious and permanent injuries, to his damage $10,000.

Defendant pleaded the general denial, and specially, in substance, that if plaintiff received and sustained the injuries and damages complained of, it was by reason of his own contributory negligence in driving his team and wagon on defendant's railroad track, just in front of the train, which was then in motion and approaching the street crossing where the accident occurred; that the train was at the time switching--putting cars on the side track--and it was necessary to run it both backwards and forwards; that had plaintiff approached the crossing carefully he would not have been hurt.

The jury found for plaintiff and assessed his damages at $1,250, on which judgment was entered.

Leake & Henry, for appellant, cited: Potter's Dwarris, p. 175; Hodges v. The St. L., K. C. & N. R. R. Co., 71 Mo., 50; G., H. & S. A. R'y v. Bracken, 59 Tex., 71;R. R. Co. v. Houston, 5 Otto, 702.

Jos. Huffmaster and W. H. Allen, for appellee.

WILLIE, CHIEF JUSTICE.

The charge complained of in the first assignment of errors was given in the language of the Revised Statutes, art. 4232.

It may be unreasonable to require a railroad company to ring a bell or blow a whistle eighty rods from a street crossing in a city, where the streets are not that far apart. It may be impossible for these signals to be given at that distance, when the train starts only a few feet from the crossing. But the statute sufficiently protects the company by freeing it from liability when the damage does not arise through a failure to give the proper signals.

For instance, in a case like the present, when the accident must have been caused either by a failure to give proper signals upon starting the train, and continuing them till the street had been passed, or by starting and crossing at all when a wagon and team were on the track; or by the appellee's attempting to cross with a wagon when a moving train was so near as to render a collision probable, it is evident that the failure to ring the bell or sound the whistle at eighty rods distance had nothing to do with the accident.

The jury, under the charge of the court, could not have taken into consideration the failure to signal at eighty rods distance from the street, but were bound to rest their decision upon one or the other of the circumstances which we have detailed.

It was plain to them that if the proper signal had been given eighty rods from the street crossing, and yet the train had started from where it was at rest whilst a...