Appellant's fourth assignment of error, which, in the opinion of the Chief Justice, ought to be sustained, is as follows:
"The court erred in submitting to the jury special issues Nos. 1, 2, 3, and 4, for the reason that the undisputed evidence shows that the failure of the defendant's engineer in charge of its train to ring the bell and blow the whistle, if he did, was not the cause of the accident, and the only issue, if any, that should have been submitted to the jury was: Did the defendant's engineer, after he saw the plaintiff change the course of his car, use all the means in his power consistent with the safety of his passengers to stop his train and prevent injuring the plaintiff and his son? As, under the facts in the case, the negligence of the defendant's agent and servant in charge of the train in failing to ring the bell and blow the whistle, if they did, ceases to be an important inquiry, as the proof shows that the plaintiff and his son were in plain view of the engineer operating the train and the train was in plain view of plaintiff and his son for a distance of 400 feet before the accident happened, and if plaintiff and his son had continued to travel as they were then traveling, they were in a place of perfect safety, the new duty of the engineer and servants operating the train intervened, and then the only important issue was, when they saw the plaintiff and his son had changed their course that would place them in danger, Did the engineer in charge of defendant's train then exercise proper care to prevent injuring them? The defendant excepted to the main charge of the court and to these special issues before they were read to, the jury, and here and now presents it in his motion for new trial, and asks that they be sustained."
The evidence in this case raised the issue of negligence as a fact for the jury's determination. That issue was therefore properly left to the jury by the trial court to determine. The jury did determine it, and found that defendant's agent in charge of the engine, on the occasion of the collision, did not sound the whistle at least 80 rods from the crossing where the collision occurred, nor sufficiently near it to give reasonable warning to persons about to use the crossing, and that this was the proximate cause of the injuries and the death. The jury also found that the engineer did not ring the bell at least 80 rods from the public crossing where the collision occurred and keep it ringing until the locomotive had passed the crossing on the occasion of the injuries and the death, and that this failure was the proximate cause of the same. The jury also found that the engineer did not use ordinary care to avoid injury to the plaintiff and his son at the time. All of these findings were in response to special issues submitted, and the submission of each of which, in our opinion, the evidence justified and required.
The findings that the whistle was not blown and that the bell was not rung as required by article 6564 established appellant's negligence per se; negligence having been found by the jury and there being evidence believed to be sufficient to sustain the finding, and there also being a finding, sustained by evidence, that there was no contributory negligence, appellant's fourth assignment appears to be not well grounded, and we are unable to perceive how appellant can rightfully contend that the court should have submitted only the question of whether or not the engineer used all the means in his power consistent with the safety of his passengers to stop the train and prevent injury after the automobile turned to cross the track. There was no evidence that he did
not do this. The evidence is uncontradicted that he did. Besides, no conclusion could be drawn from the proof other than the conclusion that no means could have been used to stop the train, after the automobile turned, in time to avoid the accident. Hence as to this feature of the case there was no issue raised by the testimony, and if appellant's theory is correct, then the court ought to have instructed the jury to find for appellant. But such instruction could not have been justified, because it would have been equivalent to saying to the jury that, although appellant's servants' negligence proximately caused the perilous situation in which appellee's son lost his life and in which appellee received his personal injuries and sustained the other damage, yet notwithstanding the fact that such negligence was the sole proximate cause, still after this negligence, producing the results complained of, arose, appellant would be free of liability if its employes, upon discovering the peril their negligence had produced, used all means compatible with safety to avoid its natural result. To say that appellant was entitled to have Its liability determined by such a test under the facts of this case would, it seems to us, be contrary to all the law of liability for personal injuries. To sustain appellant's contention would be to declare that any injury caused by negligence, however palpable, will be excused upon the tort-feasor showing that, notwithstanding his negligent failure to do his duty in the first instance, he did what he could to avoid harm to the victim of his dereliction after his negligent breach of duty had superinduced it, although he discovered it too late to interpose any prevention.
"The doctrine of discovered peril is a qualification of the general rule that the contributory negligence of the person injured ordinarily bars a recovery." 18 Corpus Juris, p. 1053. It is a doctrine which, in a proper case, the courts apply and say to a defendant that, although the negligence of the injured party brought him into peril and caused him to be where he received the injury, yet if the defendant saw the danger in time to prevent the injury by the use of reasonable care, and did not, after seeing the danger in which the injured party had negligently placed himself, use such care, he cannot rely upon the injured party's negligence to excuse himself from liability. It is not a doctrine available to a defendant as a means of defeating liability for negligence. It is rather a doctrine which enables a plaintiff to recover notwithstanding the contributory negligence of the person who is injured.
So long as any facts sufficient to sustain a finding of negligence remain in a case in which negligence is pleaded, the question of negligence never ceases to be the principal Inquiry, and appellant's contention to the contrary and to the effect that In this case the issue of discovered peril removed that of negligence is incorrect. None of the views above expressed conflict with any decision in Texas which has come to our notice. On the contrary, we think they are in harmony with the decisions of our courts. Railway Co. v. Breadow, 90 Tex. 26, 36 S.W. 410; Railway Co. v. Jacobson, 28 Tex. Civ. App. 150, 66 S.W. 1114; Higginbotham v. Railway Co., 155 S.W. 1027; Railway Co. v. Munn, 46 Tex. Civ. App. 276,102 S.W. 442; Furst-Edwards Co. v. Railway Co., 146 S.W. 1029; Railway Co. v. Sloman, 195 S.W. 323. The doctrine of discovered peril and the reasons to justify it are clearly stated by the Supreme Court in the case of Railway Co. v. Breadow, supra. In that case Judge Denman used this language:
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Appellant's fourth assignment of error, which, in the opinion of the Chief Justice, ought to be sustained, is as follows:
"The court erred in submitting to the jury special issues Nos. 1, 2, 3, and 4, for the reason that the undisputed evidence shows that the failure of the defendant's engineer in charge of its train to ring the bell and blow the whistle, if he did, was not the cause of the accident, and the only issue, if any, that should have been submitted to the jury was: Did the defendant's engineer, after he saw the plaintiff change the course of his car, use all the means in his power consistent with the safety of his passengers to stop his train and prevent injuring the plaintiff and his son? As, under the facts in the case, the negligence of the defendant's agent and servant in charge of the train in failing to ring the bell and blow the whistle, if they did, ceases to be an important inquiry, as the proof shows that the plaintiff and his son were in plain view of the engineer operating the train and the train was in plain view of plaintiff and his son for a distance of 400 feet before the accident happened, and if plaintiff and his son had continued to travel as they were then traveling, they were in a place of perfect safety, the new duty of the engineer and servants operating the train intervened, and then the only important issue was, when they saw the plaintiff and his son had changed their course that would place them in danger, Did the engineer in charge of defendant's train then exercise proper care to prevent injuring them? The defendant excepted to the main charge of the court and to these special issues before they were read to, the jury, and here and now presents it in his motion for new trial, and asks that they be sustained."
The evidence in this case raised the issue of negligence as a fact for the jury's determination. That issue was therefore properly left to the jury by the trial court to determine. The jury did determine it, and found that defendant's agent in charge of the engine, on the occasion of the collision, did not sound the whistle at least 80 rods from the crossing where the collision occurred, nor sufficiently near it to give reasonable warning to persons about to use the crossing, and that this was the proximate cause of the injuries and the death. The jury also found that the engineer did not ring the bell at least 80 rods from the public crossing where the collision occurred and keep it ringing until the locomotive had passed the crossing on the occasion of the injuries and the death, and that this failure was the proximate cause of the same. The jury also found that the engineer did not use ordinary care to avoid injury to the plaintiff and his son at the time. All of these findings were in response to special issues submitted, and the submission of each of which, in our opinion, the evidence justified and required.
The findings that the whistle was not blown and that the bell was not rung as required by article 6564 established appellant's negligence per se; negligence having been found by the jury and there being evidence believed to be sufficient to sustain the finding, and there also being a finding, sustained by evidence, that there was no contributory negligence, appellant's fourth assignment appears to be not well grounded, and we are unable to perceive how appellant can rightfully contend that the court should have submitted only the question of whether or not the engineer used all the means in his power consistent with the safety of his passengers to stop the train and prevent injury after the automobile turned to cross the track. There was no evidence that he did
not do this. The evidence is uncontradicted that he did. Besides, no conclusion could be drawn from the proof other than the conclusion that no means could have been used to stop the train, after the automobile turned, in time to avoid the accident. Hence as to this feature of the case there was no issue raised by the testimony, and if appellant's theory is correct, then the court ought to have instructed the jury to find for appellant. But such instruction could not have been justified, because it would have been equivalent to saying to the jury that, although appellant's servants' negligence proximately caused the perilous situation in which appellee's son lost his life and in which appellee received his personal injuries and sustained the other damage, yet notwithstanding the fact that such negligence was the sole proximate cause, still after this negligence, producing the results complained of, arose, appellant would be free of liability if its employes, upon discovering the peril their negligence had produced, used all means compatible with safety to avoid its natural result. To say that appellant was entitled to have Its liability determined by such a test under the facts of this case would, it seems to us, be contrary to all the law of liability for personal injuries. To sustain appellant's contention would be to declare that any injury caused by negligence, however palpable, will be excused upon the tort-feasor showing that, notwithstanding his negligent failure to do his duty in the first instance, he did what he could to avoid harm to the victim of his dereliction after his negligent breach of duty had superinduced it, although he discovered it too late to interpose any prevention.
"The doctrine of discovered peril is a qualification of the general rule that the contributory negligence of the person injured ordinarily bars a recovery." 18 Corpus Juris, p. 1053. It is a doctrine which, in a proper case, the courts apply and say to a defendant that, although the negligence of the injured party brought him into peril and caused him to be where he received the injury, yet if the defendant saw the danger in time to prevent the injury by the use of reasonable care, and did not, after seeing the danger in which the injured party had negligently placed himself, use such care, he cannot rely upon the injured party's negligence to excuse himself from liability. It is not a doctrine available to a defendant as a means of defeating liability for negligence. It is rather a doctrine which enables a plaintiff to recover notwithstanding the contributory negligence of the person who is injured.
So long as any facts sufficient to sustain a finding of negligence remain in a case in which negligence is pleaded, the question of negligence never ceases to be the principal Inquiry, and appellant's contention to the contrary and to the effect that In this case the issue of discovered peril removed that of negligence is incorrect. None of the views above expressed conflict with any decision in Texas which has come to our notice. On the contrary, we think they are in harmony with the decisions of our courts. Railway Co. v. Breadow, 90 Tex. 26, 36 S.W. 410; Railway Co. v. Jacobson, 28 Tex. Civ. App. 150, 66 S.W. 1114; Higginbotham v. Railway Co., 155 S.W. 1027; Railway Co. v. Munn, 46 Tex. Civ. App. 276,102 S.W. 442; Furst-Edwards Co. v. Railway Co., 146 S.W. 1029; Railway Co. v. Sloman, 195 S.W. 323. The doctrine of discovered peril and the reasons to justify it are clearly stated by the Supreme Court in the case of Railway Co. v. Breadow, supra. In that case Judge Denman used this language:
"If defendant, through the parties in charge of the engine, knew of Breadow's peril in time to have avoided same, such knowledge imposed upon it the new duty of using every means then within its power, consistent with the safty of the engine, to avoid running him down, and a failure so to do would render it liable, notwithstanding he may have been guilty of contributory negligence in being exposed to the peril. This new duty and liability for its breach is imposed, upon principles of humanity and public policy, to prevent what would otherwise be, as far as civil liability is concerned, the licensed destruction of persons negligently exposing themselves to peril. The same principle of law which, on grounds of public policy, will not permit a person to recover when his own negligence has proximately contributed to the injury, will not permit the party who has inflicted the injury in violation of such new duty to defend upon the ground of such negligence."
We do not understand the Sloman Case, 195 S.W. 323, to hold that a defendant can remove from a personal injury case the question of negligence and supersede it with the question of discovered peril by undertaking to prove that regardless of defendant's negligence, after the dangerous situation is discovered, all reasonable care is used to avert the injury. What the Sloman Case declares with reference to the subject is this: That appellant was not entitled to a peremptory instruction to find for it on the ground that the proof failed to show its negligence proximately caused the injury, for the reason, assigned in the opinion, that the issue of discovered peril was in the case and liability might be grounded upon it in the absence of defendant's original negligence. As the majority of this court analyzes that case, the court there, in effect, said that, conceding there was no proof of original negligence, yet a peremptory instruction to find for the defendant would have been wrong, because the question of discovered peril had supervened, and this issue the plaintiff had a right to submit to the Jury
independent of the question of original negligence, and that, accordingly, negligence vel non in a sense became immaterial in determining appellant's right to a peremptory instruction, because liability on the ground of discovered peril remained an issue for the jury, although original negligence was established by no proof at all. Such an interpretation conforms the meaning of the opinion to the generally accepted meaning of the doctrine of discovered peril, and no other interpretation does.
The doctrine of discovered peril permits a plaintiff to contend that, although the negligence of the defendant did not put the injured party in the place of danger, but he himself did this, still the defendant is liable for the injuries he suffered because defendant failed to use reasonable care to avoid inflicting them after discovering the danger. It does not, however, allow a defendant to say that, notwithstanding his own negligence, he will excuse himself from liability for it by showing that he made reasonable efforts to avert injuries after discovering the dangerous situation exclusively caused by his negligence. The defendant in this case, by its fourth assignment of error, seeks to avoid liability by the use of the doctrine in this very fashion. By this assignment it says, in effect, that although the proof might be sufficient to show the negligence of its engineer in failing to ring the bell and blow the whistle, yet, if subsequent to this negligence, and after appellee had turned to cross the track, the engineer exercised "proper care" to prevent the injury, there would be no liability.
For the reason above indicated, the assignment cannot be sustained.