WILLSON, C. J.
(after stating the facts as above). The Director General of Railroads insists the judgment should have been in his favor, and therefore that the trial court erred when he refused to instruct the jury
to
find for him, because the testimony, he says, did not warrant a finding that he was guilty of negligence in leaving engine 794 unattended on long alley track; or, if it did warrant such a finding, it conclusively appeared, he further says, that the risk due to leaving said engine unattended was one the deceased assumed.
It is plain enough, we think, that the jury had a right to say from the testimony that the engine, with defects calculated to release, and which, if they were set, did release, brakes intended to hold it, was left with steam up' and unblocked on a down grade leading to the main line track, to which it moved, where trains were frequently passing and where it collided with the engine on which the deceased was at work, killing him; and it is further plain enough, we think, that the jury had a right to conclude that leaving the engine unattended under those circumstances was negligence. Railway Co. v. Lafferty, 57 Fed. 536, 6 C. C. A. 474; Mars v. Railway Co., 54 Hun, 625, 8 N. Y. Supp. 107.
The insistence that it appeared as a matter of law that the risk from leaving the engine unattended was one the deceased assumed is predicated on testimony set out in the statement above showing it to have been a custom known to the deceased, the Director General asserts, to leave engines unattended as 794 was left on the occasion of the accident. As we understand the testimony, it did not conclusively or otherwise appear that such a custom existed, nor, if it did, that deceased knew of it. The contention evidently is based on statements like those of the witness Redinger that “no man was put there ‘specifically’ as a watchman,” and that it was the practice for hostlers and their helpers to-“go off and leave engines” with steam up and unguarded on the track. When such statements are considered in connection with the other testimony, it is plain, we think, that what the witnesses making them meant was not that it was not the duty and practice of the hostlers and their helpers as such to keep watch on engines left as 794 was on the track, but that they were not employed exclusively for that purpose and given the name of “watchman.” It is clear, looking to all the testimony, that it was the duty of the hostlers and their helpers to watch an engine intended for use as 794 was until it was coupled to the train it was to pull and placed in charge of the train crew, and we have found no testimony in the record showing that a hostler or his helper in charge of an engine ever, on- any
other occasion than the one in question here, left it “unattended” in the sense that he went to a place where, if the engine began to move because of defects, or because the brakes were not set, or because of the act of a meddler, he probably either could not or would not discover the fact in time to stop it before it reached the main line track and collided with other engines or cars thereon.
On the theory there was testimony which warranted a finding that the moving of
engine
794 to the main track was due to acts of a trespasser thereon,the Director General requested special charges which, had they been given, would have instructed the jury to find for him if they believed the engine was so moved. The refusal Of the requested charges is assigned as error. The contention (which the Director. General says, is supported by Seale v. Railway Co., 65 Tex. 274, 57 Am. Rep. 602; Railway Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Railway Co. v. Bennett, 219 S. W. 197; and Mars v. Canal Co., 54 Hun, 625, 8 N. Y. Supp. 107) is that if the engine was moved by a trespasser his act, and not the conduct of the employee in charge of it leaving it unattended, was the proximate cause of the collision which resulted in the death of appellee’s intestate.
As we understand them, the three cases first mentioned are so unlike this one in their facts as to render them of little value in determining the question made.
In the Seale Case a young girl was burned to death in an attempt to put out a fire negligently set out by the railway company on its right of way and which threatened to destroy property on the girl’s mother’s premises. The court held that the company’s act in setting out the fire was not a proximate cause of the injury to the girl.
In the Bigham Case the point decided was that negligence of the railway company with respect to fastenings on the gate to its stock pen was not a proximate cause of injury to a shipper knocked down by cattle he had placed in the pen running against the gate in an effort, because of fright, to escape from the pen while he was endeavoring to fasten the gate with a rope.
In the Bennett Case the death of the railway company’s employee was caused by his becoming overheated while fighting a fire negligently started in the company’s yard by another employee, who caused the gas in an empty oil tank car to' explode. The court held that the negligence of the employee who exploded the gas and so started the fire was not a proximate cause of the injury to the other employee.
The ruling in each of the three cases was on the theory that it appeared as a matter of law that an ordinarily prudent person would not have foreseen that injury to any one to whom he owed a duty might result from the negligence the court was considering.
The facts in the other one (Mars v. Railway Go.) of the cases cited were much like the facts in this case. There, at about 7 p. m., an engine, with steam up, was left on a side track with an employee whose duty it was to keep water in the boiler and take general charge of it overnight. At about 1 a. m. the employee left the engine and went to a switch shanty several hundred feet away. While he was at the shanty the engine moved south across several switches to the main track and then moved north on that track about half a mile, where it collided with a train. In that case, as perhaps it did in this one, the testimony warranted a finding that the engine was moved by a trespasser. Indeed, in that case the court assumed that the engine was so moved, and on that assumption said, with reference to the question as to the proximate cause of the collision:
“The injury to plaintiff for which this action is brought was not caused by the neglect of the defendant in leaving its car on the track. The injury was not the natural or ordinary result of such an act. It could not have been foreseen. Between the alleged negligence of the defendant and the accident intervened a willful, malicious, and criminal act of a third person which caused the injury and broke the connection between defendant’s negligence and the accident. In fact, some person stole defendant’s engine and sent it flying up the track, and this wicked, criminal act was the cause of the injury to the plaintiff, and defendant’s act in leaving the engine where the criminal could start it was in no sense the proximate cause of the injury, or an act which ordinarily or naturally could have produced it.”
We see no material diffierence between the Mars Case and this one, but we are unwilling to follow the ruling made there.
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WILLSON, C. J.
(after stating the facts as above). The Director General of Railroads insists the judgment should have been in his favor, and therefore that the trial court erred when he refused to instruct the jury
to
find for him, because the testimony, he says, did not warrant a finding that he was guilty of negligence in leaving engine 794 unattended on long alley track; or, if it did warrant such a finding, it conclusively appeared, he further says, that the risk due to leaving said engine unattended was one the deceased assumed.
It is plain enough, we think, that the jury had a right to say from the testimony that the engine, with defects calculated to release, and which, if they were set, did release, brakes intended to hold it, was left with steam up' and unblocked on a down grade leading to the main line track, to which it moved, where trains were frequently passing and where it collided with the engine on which the deceased was at work, killing him; and it is further plain enough, we think, that the jury had a right to conclude that leaving the engine unattended under those circumstances was negligence. Railway Co. v. Lafferty, 57 Fed. 536, 6 C. C. A. 474; Mars v. Railway Co., 54 Hun, 625, 8 N. Y. Supp. 107.
The insistence that it appeared as a matter of law that the risk from leaving the engine unattended was one the deceased assumed is predicated on testimony set out in the statement above showing it to have been a custom known to the deceased, the Director General asserts, to leave engines unattended as 794 was left on the occasion of the accident. As we understand the testimony, it did not conclusively or otherwise appear that such a custom existed, nor, if it did, that deceased knew of it. The contention evidently is based on statements like those of the witness Redinger that “no man was put there ‘specifically’ as a watchman,” and that it was the practice for hostlers and their helpers to-“go off and leave engines” with steam up and unguarded on the track. When such statements are considered in connection with the other testimony, it is plain, we think, that what the witnesses making them meant was not that it was not the duty and practice of the hostlers and their helpers as such to keep watch on engines left as 794 was on the track, but that they were not employed exclusively for that purpose and given the name of “watchman.” It is clear, looking to all the testimony, that it was the duty of the hostlers and their helpers to watch an engine intended for use as 794 was until it was coupled to the train it was to pull and placed in charge of the train crew, and we have found no testimony in the record showing that a hostler or his helper in charge of an engine ever, on- any
other occasion than the one in question here, left it “unattended” in the sense that he went to a place where, if the engine began to move because of defects, or because the brakes were not set, or because of the act of a meddler, he probably either could not or would not discover the fact in time to stop it before it reached the main line track and collided with other engines or cars thereon.
On the theory there was testimony which warranted a finding that the moving of
engine
794 to the main track was due to acts of a trespasser thereon,the Director General requested special charges which, had they been given, would have instructed the jury to find for him if they believed the engine was so moved. The refusal Of the requested charges is assigned as error. The contention (which the Director. General says, is supported by Seale v. Railway Co., 65 Tex. 274, 57 Am. Rep. 602; Railway Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Railway Co. v. Bennett, 219 S. W. 197; and Mars v. Canal Co., 54 Hun, 625, 8 N. Y. Supp. 107) is that if the engine was moved by a trespasser his act, and not the conduct of the employee in charge of it leaving it unattended, was the proximate cause of the collision which resulted in the death of appellee’s intestate.
As we understand them, the three cases first mentioned are so unlike this one in their facts as to render them of little value in determining the question made.
In the Seale Case a young girl was burned to death in an attempt to put out a fire negligently set out by the railway company on its right of way and which threatened to destroy property on the girl’s mother’s premises. The court held that the company’s act in setting out the fire was not a proximate cause of the injury to the girl.
In the Bigham Case the point decided was that negligence of the railway company with respect to fastenings on the gate to its stock pen was not a proximate cause of injury to a shipper knocked down by cattle he had placed in the pen running against the gate in an effort, because of fright, to escape from the pen while he was endeavoring to fasten the gate with a rope.
In the Bennett Case the death of the railway company’s employee was caused by his becoming overheated while fighting a fire negligently started in the company’s yard by another employee, who caused the gas in an empty oil tank car to' explode. The court held that the negligence of the employee who exploded the gas and so started the fire was not a proximate cause of the injury to the other employee.
The ruling in each of the three cases was on the theory that it appeared as a matter of law that an ordinarily prudent person would not have foreseen that injury to any one to whom he owed a duty might result from the negligence the court was considering.
The facts in the other one (Mars v. Railway Go.) of the cases cited were much like the facts in this case. There, at about 7 p. m., an engine, with steam up, was left on a side track with an employee whose duty it was to keep water in the boiler and take general charge of it overnight. At about 1 a. m. the employee left the engine and went to a switch shanty several hundred feet away. While he was at the shanty the engine moved south across several switches to the main track and then moved north on that track about half a mile, where it collided with a train. In that case, as perhaps it did in this one, the testimony warranted a finding that the engine was moved by a trespasser. Indeed, in that case the court assumed that the engine was so moved, and on that assumption said, with reference to the question as to the proximate cause of the collision:
“The injury to plaintiff for which this action is brought was not caused by the neglect of the defendant in leaving its car on the track. The injury was not the natural or ordinary result of such an act. It could not have been foreseen. Between the alleged negligence of the defendant and the accident intervened a willful, malicious, and criminal act of a third person which caused the injury and broke the connection between defendant’s negligence and the accident. In fact, some person stole defendant’s engine and sent it flying up the track, and this wicked, criminal act was the cause of the injury to the plaintiff, and defendant’s act in leaving the engine where the criminal could start it was in no sense the proximate cause of the injury, or an act which ordinarily or naturally could have produced it.”
We see no material diffierence between the Mars Case and this one, but we are unwilling to follow the ruling made there. We think the jury, on the facts of this case, had a right to say that an ordinarily prudent person should have foreseen the consequences which resulted from the movement of engine 794 to the main track, and therefore had a right to say, further, that the Director General owed the deceased the duty to use care to have the engine so guarded that It would not so move of itself or be so moved by the acts of a meddler. We think the jury also had a right to say that if the Director General had performed that duty the engine would not have moved onto said track either of itself or by the act of an unauthorized person. The duty of guarding .the engine arose from the consequences to be expected if it moved without proper control to the main track, and if performance of that duty would have prevented a trespasser from so moving it we see no reason why failure to perform the duty should not be regarded as a proximate cause of the injury to the deceased. This view of the question made is supported by Railway Co. v. Lafferty, 57 Fed. 536, 6 C. C. A. 474, decided by the United
States Circuit Court of Appeals for the Ninth District. In that case two “live” road engines left overnight, with a switch engine, in the railway’s company’s yard in charge of one Riley, from a cause not shown by the testimony, moved from the track they were on to the main track and collided with a train thereon, killing Rafferty, who was a brakeman on the train. The negligence charged was a failure of the railway company to use due care to have the engines watched, the contention being that Riley alone could not properly watch them and perform other duties devolved upon him. There was testimony that the engineers who left the engines in the yard had been instructed by the company to group them and had failed to do so. On the theory that it appeared that the road engines were put in motion by some unauthorized person, it was insisted that, “if there was any negligence, it was not the negligence of the railway company, but the carelessness or negligence of the coemployees, either of the watchman [Riley] or the engineers who failed to obey their instructions in grouping their engines together, who were fellow servants with the deceased,” which caused,the accident. The trial court instructed the jury, other conditions he specified being complied with, to find for the plaintiff if they believed the appointment of Riley “to look after those engines,” quoting, “and see that they were not tampered with or moved from their place, was -a reasonable precaution to be taken by the company.” In affirming a judgment in the plaintiff’s favor the court said:
“We are of opinion the court did not err in declaring that the law imposed upon the railroad company the duty of taking reasonable precautions to see that the engines left upon its tracks at night in the yard at Fresno, with water in the boilers and fires burning, were not tampered with or moved; and that the court properly submitted to the jury the question whether or not the employment of only one watchman to perform that duty, it being also required of him to wipe the engines and put them in proper order for service the next day, was a reasonable precaution. * * * It is well settled that the master should not expose his employees, when conducting and carrying on his business, to perils or hazards, against which they might be guarded by ordinary diligence and reasonable precautions on his part. The master is bound to exercise the care which the exigencies of the business in which he is engaged reasonably require for the protection of his employees. Hough v. Railway Co., 100 U. S. 213. Applying these principles to the particular facts of this case, we are of opinion that the railroad company woijld have been negligent to have allowed its engines to remain upon its tracks in the yard at Fresno without taking some precautions to provide against their being put in motion of themselves, or by the act of careless, thoughtless, or evil-disposed persons. Live engines, thus placed, without any person to guard or take charge of them, are liable to be interfered with; and if, from any of the causes before mentioned, they should be started in motion, and run out upon the main track, and continue in motion, they would, in the very nature of things, become engines of great danger, imparting unusual peril and hazard to the lives and limbs of all thie employees of the company who might be in charge of other engines and cars upon the main track. * * * ike company is bound to take ordinary care to prevent such engines from running out from the side tracks, * * * where they are left, onto the main track, k>f their own motion, or from being run out by any interference of outside parties.”
It is insisted, the judgment was for a sum in excess of that warranted by the testimony, but we do not think it was, and overrule the contention.
Assignments not disposed of by what has been Said have received the consideration they seem to us to deserve, and we think none of them presents a reason why’the judgment, so far as it is against the Director General, should be disturbed. We think, however, it is erroneous so far as it is against the receivers, for it conclusively appeared that the injury to Morgan occurred during the time the federal government, through the Director General, was operating the railway belonging to the company of which they were receivers. Nash v. Railway Co. (D. C.) 260 Fed. 280; Railway Co. v. Wilkerson, 224 S. W. 575. Therefore the judgment will be affirmed so far as it is against the Director General, and reversed so far as it is against the receivers, and judgment will be here rendered that appellee take nothing as against them.