SPEER, District Judge
(after stating tlie facts as above). The statute of Texas by which it was intended to avoid casualties at [156]*156crossings where the roads of the country intersect railways provides as follows:
“A bell of at least thirty pounds weight, or a steam whistle shall be placed on each" locomotive engine, and the bell shall be rung or whistle blown at the distance of at least eighty roas from the place where the railroad shall cross any road or street, and to be kept ringing or blowing until it shall have crossed such road or street, or stopped.” Key. St. Tex. art. 4232.
There was no dispute as to the fact of the accident or the extent of the injuries sustained by the plaintiff, and the controverted issues were: First. Did the defendant disregard its duty as defined by the statute above quoted, and, indeed, the common law? And, secondly, did the plaintiff fail to exercise the ordinary care which might have avoided the accident? The jury determined both of these issues in favor of the plaintiff, and, unless there were, in the conduct of the trial, such errors on the part of the court as will necessarily compel a resubmission of the cause to a jury, the verdict must be sustained. The law relating generally to both of these issues has been recently discussed and defined by the supreme court of the United States in a valuable decision, — Railroad Co. v. Griffith (decided November 18, 1895) 16 Sup. Ct. 105; Mr. Chief Justice Fuller delivering the opinion. The statute alleged to have been disregarded, the averments of negligence, and the grounds of defense were in that case substantially the same as in this. There the finding of the lower court in favor of the plaintiff was sustained. It is superfluous to do more than refer to the reasoning, of the chief justice and the conclusions of the court in that case.
The exception of the plaintiff in error, to the effect that the court erred in admitting evidence to show that the engineer and fireman saw the plaintiff with the wagon approaching the crossing, and that these employés of the defendant might then have stopped the train in time to have avoided the injury, is not, in our opinion, well taken. It is true that there were no averments in the petition charging the defendant with negligence on that account, but the evidence objected to was given by the defendant’s witnesses. From its nature it could not have been known to the plaintiff. The facts were a part of the res gestse, and were therefore admissible, and were otherwise admissible under the several general allegations of negligent, careless, and rapid approach to the crossing.
Nor is the criticism of the charge of the court in the second assignment of error important. The court instructed the jury that the statute provided that the bell shall be rung, or whistle blown, at a distance of at least 80 rods from the place where a railroad shall cross any road or street, and be kept ringing or blowing until it shall have crossed. The plaintiff in error points out that the true language is that the whistle, shall be blown or the bell rung at a distance of at least 80 rods from the place where a railroad shall cross any public road or street, and that such bell shall be kept ringing until it shall have crossed. The court merely added the words “or blowing” after “ringing.” This inadvertence, if it be such, was favorable to the defendant, for it afforded the railway the choice of two signals where the statute only permitted one; [157]*157namely, the continued ringing of the bell. The jury, it seems, found that the defendant did neither.'
Exception is also taken to the instruction of the court expressed as follows:
“A person attempting to cross a railroad track: lias a right to expect that the railroad will give the signals required by law, and if he is without fault, and such neglect on the part of the railroad results in his injury, then he can recover.”
This is unobjectionable. It is indeed, stated with more careful regard to the rights of the defendant than seems to have been Thought necessary by the supreme court of Texas. In the case of Railway Co. v. Graves, 59 Tex. 332, that court declared:
“A person, in approaching a railway crossing, has the right to expect that the railway company will give such signals of an approaching train as prudence and the law require; and if, relying upon this, he attempts to cross the track without knowledge or means of knowledge of the approach of the train, and is injured by reason of the failure of the employes of the railway to perform a duty prescribed by law, then he is entitled to recover.”
This is substantially the charge as complained of, save that the instruction of the presiding judge in this case required that the plaintiff herself be without fault. That was a clear indication of the reciprocal duty of ordinary care on the part of the plaintiff.
The plaintiff in error further insists that the court should have given the jury the following request to charge:
“You are instructed that neither the plaintiff nor defendant had the right 1o rely upon the other exercising the care exacted by law of both in the use of the crossing, but it was the duty o£ each, in the use of the crossing, to use that care that a person of ordinary prudence would have used under similar circumstances.”
This is Hie converse of the instruction of which complaint is made in the assignment of error last discussed. Since we think the instruction there complained of was proper, it follows that this request ivas erroneous. Since both parties are charged, we think, with the mutual duty of keeping a careful lookout for danger, and since the degree of diligence to be exerted on either side is such as a prudent person would exercise under the circumstances of the case endeavoring fairly to perform his duty, each has the right to expect that the other will do his duty. This language does not import that either is absolved from the duty of ordinary care. To illustrate, an engineer may perceive a person driving a wagon approaching a crossing. His train, let us say, is running at a high speed, to conform to the requirements of the schedule for trains as prescribed by the company. When he gives the appropriate signal for the crossing, he has the right to expect that the person in control of the team wall not drive on the track, but will stop. The engineer surely need not stop every time he sees an approaching team. And if, without fault on Ids part, collision results, the railway company will not be liable for the damage. It follows that one driving the wagon has the right to expect that the engineer will give the signal. If care is (alcen to listen to the signal, and none is heard, and, not aware of the approaching train, the wagon is driven on the track, [158]*158and the collision results, the railway company will be liable. Besides, in this case the duty of each party was elsewhere distinctly set forth, in the general charge of the court.
In the fifth assignment' of error, complaint is made that the court charged the jury:
Free access — add to your briefcase to read the full text and ask questions with AI
SPEER, District Judge
(after stating tlie facts as above). The statute of Texas by which it was intended to avoid casualties at [156]*156crossings where the roads of the country intersect railways provides as follows:
“A bell of at least thirty pounds weight, or a steam whistle shall be placed on each" locomotive engine, and the bell shall be rung or whistle blown at the distance of at least eighty roas from the place where the railroad shall cross any road or street, and to be kept ringing or blowing until it shall have crossed such road or street, or stopped.” Key. St. Tex. art. 4232.
There was no dispute as to the fact of the accident or the extent of the injuries sustained by the plaintiff, and the controverted issues were: First. Did the defendant disregard its duty as defined by the statute above quoted, and, indeed, the common law? And, secondly, did the plaintiff fail to exercise the ordinary care which might have avoided the accident? The jury determined both of these issues in favor of the plaintiff, and, unless there were, in the conduct of the trial, such errors on the part of the court as will necessarily compel a resubmission of the cause to a jury, the verdict must be sustained. The law relating generally to both of these issues has been recently discussed and defined by the supreme court of the United States in a valuable decision, — Railroad Co. v. Griffith (decided November 18, 1895) 16 Sup. Ct. 105; Mr. Chief Justice Fuller delivering the opinion. The statute alleged to have been disregarded, the averments of negligence, and the grounds of defense were in that case substantially the same as in this. There the finding of the lower court in favor of the plaintiff was sustained. It is superfluous to do more than refer to the reasoning, of the chief justice and the conclusions of the court in that case.
The exception of the plaintiff in error, to the effect that the court erred in admitting evidence to show that the engineer and fireman saw the plaintiff with the wagon approaching the crossing, and that these employés of the defendant might then have stopped the train in time to have avoided the injury, is not, in our opinion, well taken. It is true that there were no averments in the petition charging the defendant with negligence on that account, but the evidence objected to was given by the defendant’s witnesses. From its nature it could not have been known to the plaintiff. The facts were a part of the res gestse, and were therefore admissible, and were otherwise admissible under the several general allegations of negligent, careless, and rapid approach to the crossing.
Nor is the criticism of the charge of the court in the second assignment of error important. The court instructed the jury that the statute provided that the bell shall be rung, or whistle blown, at a distance of at least 80 rods from the place where a railroad shall cross any road or street, and be kept ringing or blowing until it shall have crossed. The plaintiff in error points out that the true language is that the whistle, shall be blown or the bell rung at a distance of at least 80 rods from the place where a railroad shall cross any public road or street, and that such bell shall be kept ringing until it shall have crossed. The court merely added the words “or blowing” after “ringing.” This inadvertence, if it be such, was favorable to the defendant, for it afforded the railway the choice of two signals where the statute only permitted one; [157]*157namely, the continued ringing of the bell. The jury, it seems, found that the defendant did neither.'
Exception is also taken to the instruction of the court expressed as follows:
“A person attempting to cross a railroad track: lias a right to expect that the railroad will give the signals required by law, and if he is without fault, and such neglect on the part of the railroad results in his injury, then he can recover.”
This is unobjectionable. It is indeed, stated with more careful regard to the rights of the defendant than seems to have been Thought necessary by the supreme court of Texas. In the case of Railway Co. v. Graves, 59 Tex. 332, that court declared:
“A person, in approaching a railway crossing, has the right to expect that the railway company will give such signals of an approaching train as prudence and the law require; and if, relying upon this, he attempts to cross the track without knowledge or means of knowledge of the approach of the train, and is injured by reason of the failure of the employes of the railway to perform a duty prescribed by law, then he is entitled to recover.”
This is substantially the charge as complained of, save that the instruction of the presiding judge in this case required that the plaintiff herself be without fault. That was a clear indication of the reciprocal duty of ordinary care on the part of the plaintiff.
The plaintiff in error further insists that the court should have given the jury the following request to charge:
“You are instructed that neither the plaintiff nor defendant had the right 1o rely upon the other exercising the care exacted by law of both in the use of the crossing, but it was the duty o£ each, in the use of the crossing, to use that care that a person of ordinary prudence would have used under similar circumstances.”
This is Hie converse of the instruction of which complaint is made in the assignment of error last discussed. Since we think the instruction there complained of was proper, it follows that this request ivas erroneous. Since both parties are charged, we think, with the mutual duty of keeping a careful lookout for danger, and since the degree of diligence to be exerted on either side is such as a prudent person would exercise under the circumstances of the case endeavoring fairly to perform his duty, each has the right to expect that the other will do his duty. This language does not import that either is absolved from the duty of ordinary care. To illustrate, an engineer may perceive a person driving a wagon approaching a crossing. His train, let us say, is running at a high speed, to conform to the requirements of the schedule for trains as prescribed by the company. When he gives the appropriate signal for the crossing, he has the right to expect that the person in control of the team wall not drive on the track, but will stop. The engineer surely need not stop every time he sees an approaching team. And if, without fault on Ids part, collision results, the railway company will not be liable for the damage. It follows that one driving the wagon has the right to expect that the engineer will give the signal. If care is (alcen to listen to the signal, and none is heard, and, not aware of the approaching train, the wagon is driven on the track, [158]*158and the collision results, the railway company will be liable. Besides, in this case the duty of each party was elsewhere distinctly set forth, in the general charge of the court.
In the fifth assignment' of error, complaint is made that the court charged the jury:
“If the jury believe from the evidence that the agents, employés, or servants o£ the defendant did see the plaintiff at a distance sufficiently remote from the place of accident that, by the use of the means and appliances in their hands, they could have stopped the engine tney were running before reaching the crossing where the accident occurred, so as to have avoided injuring the plaintiff, and further find that they failed to so stop said train, then and in tnat event jrou are instructed that the defendant is guilty of negligence, and you should find for the plaintiff.”
It must be observed that this instruction is to be construed in connection with other portions of the charge, which, in our opinion, fairly submitted to the jury the question of negligence resulting from the failure, to give the signals for the crossing, required by law. In the absence of specific allegations of negligence based upon the failure to stop the train after the wagon of the plaintiff was seen, the defendant might with more propriety complain of this charge, were it not for the fact, that the plaintiff’s case is primarily based on the failure to give the signals as the proximate cause of the injury. It is to be observed that the facts upon which this charge was based were brought out in the defendant’s testimony, namely, in the evidence of the engineer and the fireman. The plaintiff could by no possibility have foreseen that this feature of the case would be presented, and therefore should not be deprived of its legal effect on the minds of the jury because she omitted to refer to it in her petition. This feature was an unforeseen contingency of the trial. If the defendant having failed to give the signals at the time and place required, and its employés, at a distance of 1,000 feet from the crossing, perceived the plaintiff going on the track, a double duty devolved upon th'e employés to do all in their power to stop the train. If, then, they could stop the train, and did not, it was negligence of the gravest character. They were obliged to conclude that the danger was apparent, because they must have concluded that, in the absence of the danger signals, the persons in the wagon were satisfied of their own safety. If, then, the engineer neglected this duty, it was an incident of negligence which the jury might consider in view of the general averment as to the very rapid, reckless, and careless manner in which the crossing was approached.
For the same reason, we have concluded that the sixth assignment of error is not of sufficient importance to reverse the action of the court below, which, in its entirety, sufficiently conserved the rights of the defendant, and accorded only moderate compensation for the painful and permanent injuries sustained by the plaintiff. For these reasons, the judgment of the court below is affirmed.