Texas & N. O. R. Co. v. Bolton

(after stating the facts as above). Error is predicated upon the refusal of the court to give a requested special charge peremptorily instructing the jury to return a verdict in favor of the appellant upon the ground that, under the evidence, there were no issues of negligence to submit to the jury which, as a matter of law, could have been the proximate cause of the injury sued for. The points urged are: (1) That as the appellee saw the approaching train 150 yards distant from him and had sufficient *218 time to go, as he did, to a place of safety, seven or eight feet from the tract and in full clearance of • the train, the failure to blow the whistle as a warning of the approach of the train could not he, as a matter of law, the proximate cause of his injury; and (2) that as the appellee was not on the railroad track, but safely standing seven or eight feet from it and in full clearance of the train and flagging the engineer until the engine was parallel and opposite to him, the engineer could not possibly have anticipated that the appellee would come in contact with the engine, and therefore the evidence does not, as a matter of law, raise an issue of discovered peril.

The contention of appellant seems to be founded on a construction of the evidence as establishing only the simple facts of a person, after seeing an approaching train 150 yards distant from him, placing himself at a point 7 or 8 feet away from the track and in safe clearance of the train and standing there in that safe place, the engineer .seeing him thus situated, until the time the engine is exactly parallel and opposite to him, and then suddenly in some way changing that position in the direction of the train so as to be struck by the end of the pilot beam of the engine. It is clear that the contention of appellant would be tenable, and ordinarily would be sustained, if the evidence should be viewed and considered as presenting only the simple facts stated. Ry. Co. v. Williams, 41 S. W. 501; Ry. Co. v. Gray, 95 Tex. 424, 67 S. W. 763; Ry. Co. v. Staggs, 90 Tex. 458, 39 S. W. 295; Ry. Co. v. Sheeter, 94 Tex. 196, 59 S. W. 533; and other cases. But the evidence here discloses a distinctive and special condition different from the usual and ordinary situations described in the cases, surounding and known to the parties at the time of the occurrence on which the controversy is based, that must be taken into account and considered as a basis upon which to predicate an actionable fault or wrong. The facts admittedly show that appellee was at work under a contract with appellant, by the terms of which he was to do ditching and grading in a cut 250 yards long, between 20 and 30 feet wide, and 15 feet deep. The appellant’s railway track, on which trains were operated, ran through the cut in conformity with the considerable curve of the cut. The performance of the work was by means of workmen driving, teams pulling plows. and scrapers, the appellee personally supervising the work. The labor required the immediate and constant attention of the appellee and his workmen. The cut and the track at the west end had a considerable curve, and a train could be seen for about 150 yards from the cut. And it appears that without timely notice of the approach of the train, in the unsafe and perilous position in which they would be put, there was danger of an injury from the train to the appellee and his workmen if the teams were not withdrawn from the cut by the time the train reached and commenced to enter the cut. The place of work was rendered unsafe and perilous to appellee and his workmen, and probably to the train,'if the teams were not withdrawn from the cut by the time the train began to pass through it, by reason of the width of the cut (10 or 15 on each side of the track) and the embankments (15 feet high)' and the natural disposition of some of the teams, confined in this inclosure, to get excited at the train and become unruly and run away, dragging the scrapers if not unhitched from them. Appellee had been at work at the place about a week when the occurrence in suit happened. And during that time, upon the timely warning that was given of the approach of the train, he had regularly removed the teams from the cut. A witness testified that—

“The custom and habit while on this job had always been — we always heard the whistle in time to get out; we always had been able to get the teams out; we never left them down in the cut when the train came; we always made it a practice to get them out.”

And it further appears without dispute that after the first day the work in the cut commenced it was “the custom,” and “usually” done, for the operatives of the engine to blow the whistle before reaching the cut, as a timely warning to the appellee and his workmen of the approach of the train, for the purpose of permitting the withdrawal of the teams from the cut before the train reached it. And it conclusively appears that apiJellee relied on the custom to blow the whistle in timely warning of the approach of the train in order to enable him to withdraw the teams from the cut before the train reached and began to enter the cut. At the time of the occurrence in suit the whistle was not blown in accordance with the usual custom. According to the undisputed evidence, appellee saw the approaching train at a point 150 yards distant from the end of the cut; but it is further apparent that from the time he saw the train until it (running at the speed of 15 miles per hour) reached a point opposite to him, there was not reasonably sufficient time within which to unhitch and withdraw all of the teams from the cut. He had gotten clear of the track and was attending an excited and unruly team held by a boy about 7 or 8 feet from the track. And it appears appellee flagged the train to stop. The engineer, it appears, seeing the perilous situation and danger, the view being clear and open to him, did not heed the flagging, twice given, and did not stop or slacken the speed of the train. According to the only evidence offered, the train, coming upgrade, “could have stopped in 20 feet. He would not have anything to *219 ■do except cut off the steam, and would not have to use but mighty little air.”

[1 ] At the time the engine reached a point nearly opposite the team, they whirled in the direction of appellee and caused him to come in contact with the pilot beam of the engine, •occasioning injury to him. Whether or not the appellee was struck by the team when they whirled, or suddenly moved his position to avoid being hit by them, does not distinctly appear in the evidence. If it could be said that in all these circumstances no fault or negligence is chargeable to the appellant, or if the injury which occurred could by no reasonable probability have been foreseen and averted and was one which no reasonable person would have anticipated, the liability cannot be predicated against appellant. There can, of course, be no fault or negligence where there is no act or service or duty which a person is bound to perform •or fulfill. But in all the circumstances, and in view of the practice and custom of appellant through the train operatives to blow the whistle, was it thereupon the duty of appellant’s train operatives to give the accustomed timely notice of the approach of the train by blowing the whistle? The only apparent way in the circumstances to sufficiently make known the train’s approach was to give timely warning by blowing the whistle. And knowing that the appellee and his employees were at work with teams in the cut, and of the situation surounding them, the operatives of the train adopted, as must reasonably be concluded, this custom and practice of giving timely warning of the approach of the train as a method of exercising ordinary care to avoid any injury or probability of injury to those at work in the cut at a time when the train was going through it. The law itself, under the circumstances, would require the exercise of reasonable care on the part of appellant’s train operatives. And the method of exercising ordinary care by the practice of blowing the whistle was in the general scope and authority of the operatives of the train. It is manifest from the circumstances of the ease that there is shown some obligation or duty which the appellant’s train operatives left undischarged and unfulfilled at the time of the occurrence. This custom and practice to give timely warning by blowing the whistle fixed the duty to be performed by appellant’s train operatives, and on which the appellee relied. Blackwell v. Ry. Co., 111 N. C. 151, 16 S. E. 12, 17 L. R. A. 729, 32 Am. St. Rep. 786; Hinkle v. Ry. Co., 109 N. C. 472, 13 S. E. 884, 26 Am. St. Rep. 581.

[2] And the very occurrence which happened by reason of its nonobservance was the one intended to be prevented by the custom of giving timely warning by blowing the whistle. It is true that appellee was cognizant of the approach of the train, and in time to get himself off the track, but not in time to withdraw all of the teams from the cut and thereby remove the danger and probability of injury to him in the situation surrounding him. Hence appellee was in the same attitude as would be a person not having seen the train at all, so far as having time to avert the injury was concerned. And as the very injury happened which was intended to be prevented by the custom of giving timely notice of the train’s approach, that injury may be considered as directly caused by the nonobservance of such custom, not "causes independent of that violation happening solely to produce the injury, and ap-pellee not being guilty of contributory negligence. There is a causal connection between the nonobservance of the custom of giving timely warning and the injury resulting to appellee.

[3, 4] It is the rule that if the injury is a natural and probable consequence of the act complained of, then that violation is correctly taken as the proximate cause of the injury. 1 Thompson on Negligence, §§ 52 and 59; Wehner v. Lagerfelt, 27 Tex. Civ. App. 520, 66 S. W. 221. And it is believed that it cannot be said in the case, as a matter of law, that appellee was guilty of contributory negligence, or that the train did not in fact strike and injure him. All the circumstances surrounding the parties must be considered in measuring the reasonable care, and the proximate cause of injury from failing to use it, devolving upon appellant’s train operatives at the time of the injury; and not the bare-fact, dissociated from all the other facts and circumstances, that appellee had sufficient time to get himself 7 or 8 feet in the clearance of the train from the track.

[5] But if it should be erroneous (and we do not think it is) to hold that the failure to give timely warning by blowing the whistle was*the proximate cause of the injury, then the issue of discovered peril was sufficiently raised, we conclude, to warrant the trial court- in refusing a peremptory instruction. The facts show that one of the teams, still hitched to a scraper, became excited at the approaching train, and that the appellee, assisting in the efforts to quiet it, flagged the train to stop when the train was 75 yards distant; and the team becoming more unruly, seemingly trying to “run away,” appellee again flagged the train, then a distance of about 60 feet, to slow up or stop. As testified:

“The cut wasn’t wide enough on either side of the rail (of the railway track) for this team to have stayed and let the train pass unless they were standing perfectly still. * * * If the team was gentle, stood perfectly still, and had backed against the cut, the train could have passed.”

There is evidence sufficient to show that the engineer saw the situation and probability of' injury to the appellee. The train, coming upgrade, could have stopped, it was *220 shown, within 20 feet. There is no evidence to the contrary of this. The train did not stop, nor was any effort made to slacken its speed. There is an absence of any circumstances showing the exercise of reasonable care on the part of the train operatives, after seeing the appellee’s perilous situation and probability of injury from the train, to avert the injury to him. It Is thought that it cannot be said, as a matter of law, that the injury was one which by reasonable probability could not have been foreseen, or which no reasonable person would have anticipated might happen. Ry. Co. v. Tinon, 117 S. W. 936. The two issues above discussed were pleaded by the appellee; and the court was not, it is concluded, in error in submitting them to the jury. Therefore assignments of error No. 1 and the assignments relating to the points numbered 2 to 9, inclusive, and No. 11, are overruled.

[6] The special charge requested and refused as complained of in the eighth ■ assignment of error was sufficiently covered, we think, in the issue of contributory negligence as submitted by the court to the jury; and the assignment is overruled.

[7] The tenth assignment predicates error upon the amount of the judgment. It does not appear from the record that there was any passion or prejudice on the part of the jury in assessing the amount they did, and there is evidence of permanency of the injury to that degree that would authorize the jury, as in their province, to fix the amount found in their verdict.

The judgment is affirmed.