DENMAN, Associate Justice.
—In September, 1889, the roadbed of plaintiff in-error, in the city-of Fort Worth, Texas, from the Union-
Depot north to Seventeenth street, was constructed across a plot of ground not a public square or street, upon an elevation consisting in part of embankments and in part of a bridge and trestlework over a ravine. Said roadbed appears to have been wide enough for three tracks running practically parallel with each other, with the usual space between. On each side of the bridge was a plank walk, with hand rails, for the use of pedestrians crossing same. Said roadbed on said date, and for a number of years prior thereto, was in almost constant use by pedestrians as a footpath in going to and from said depot. About 10 o’clock p. m., September 20, 1889, defendant in error, Mrs. Kate Watkins, with two companions and her little child, which she carried in her arms, was walking south between two of said tracks on said roadbed, going to said depot to take passage on one of the trains of plaintiff in error, then about due, when a switch engine approached from behind on one of said tracks at the rate of from two to six miles per hour, without ringing the bell or blowing the whistle, or giving any other warning of its approach. When the engine was within a few feet of defendant in error a rumbling noise caused her to turn and look back, whereupon she was so startled and frightened by the close proximity of the engine that she jumped against it, and was knocked down and received the injuries complained of herein. The distance between the tracks at the place of the accident was about eight feet, and defendant in error would not have been struck had she remained where she was before she jumped. It appears that the engineer did not see defendant in error, and was not aware of her presence until he heard her scream when injured.
At the time of the injury defendant in error was a married woman, but her husband died before the institution of this suit, leaving surviving him defendant in error and their two children as his only heirs, whereupon she brought this suit, on behalf of herself and said children, to recover damages resulting from such injuries, and also for expenses incurred in her sickness resulting therefrom. It was shown on the trial that there was no administration and no necessity for administration on the estate of the deceased husband.
Defendant in error recovered judgment in the court below, which was affirmed by the Court of Civil Appeals, and the cause is now before this court on writ of error. ■
It is not made to appear.-that any injury resulted to plaintiff in error from the fact that said children were joined in the suit as coplaintiffs, and therefore it is unnecessary for us to determine whether the court below erred in holding them proper parties plaintiffs. Street Railway v. Helm, 64 Texas, 147; Lee v. Turner, 71 Texas, 264.
The Court of Civil Appeals found, as a matter of fact, that plaintiff in error was guilty of negligence in running the engine so close to defendant in error without giving any notice of its approach. Plaintiff in error complains that this -finding was an error of law, for the reason that defendant in error was either a trespasser or a mere licensee, and
plaintiff in error owed her no duty to keep a lookout to discover her or give her any notice of the approach of the engine.
It is often said that a railroad owes no duty to a trespasser or one wrongfully on its track, except to refrain from wanton injury to him. This doctrine has never been adopted in this State, but has been expressly repudiated. In the case of Railway v. Sympkins, 54 Texas, 618, the court say: “We do not assent to the proposition that a railroad company may not become liable to one who is run over and injured by reason of the want of watchfulness of its servants, although such person may have been originally a trespasser on the track. If a party be wrongfully on the track under such circumstances, or, being there, acts in such a way as to be himself a proximate cause of his own injury, he will be precluded from recovery on grounds of public policy, as being himself guilty of contributory negligence. Although the company’s agents may have failed in proper watchfulness, the injured person is regarded as being himself too directly a cause of the injury to be allowed to complain. * * * We prefer that line of decisions holding railroads bound to exercise their dangerous business with due care to avoid injury to others, as correct in principle and sound in policy, and as protecting even a trespasser who is not guilty of contributory negligence.”
In the case of Railway v. Hewett, 67 Texas, 479, the court (Stayton, J.) say: “Ordinarily railway companies, running cars propelled by steam, have the exclusive right to the use of their tracks, except at such places as they are intersected by public crossings or such private ways as they may permit, and they may therefore expect that no one will violate this right, and may rely upon a clear track; but it is very generally held, that, notwithstanding this, such is the hazardous nature of the business in which they are engaged, it is the duty of such carriers, not only for the safety of their passengers, but for the safety of any one who may be on the track, to keep a lookout.” Artusy v. Railway, 73 Texas, 193, and cases therein cited.
The true rule is, that it is the duty of the servants of the railroad company operating its trains to use reasonable care and caution to discover persons on its track, and a failure to use such care and" caution is negligence on the part of such company, for which it is liable in damages for an injury resulting from such negligence, unless such liability is defeated by. the contributory negligence of the person injured, or of the person seeking to recover for such injury, and the circumstances under which the party injured went upon the track are merely evidence upon the issue of contributory negligence. If such circumstances show that the party injured was a wrongdoer or trespasser at the time of the injury, the issue of contributory negligence is, as a general rule, established as a matter of law; but not so in all cases. ■
It results from the above, that it was the duty of the railroad to use ordinary or reasonable care to discover and warn defendant in error,
whether she be considered a trespasser or a mere licensee, and a failure to use such care was negligence, rendering the railroad liable for such damages as resulted therefrom, unless under all the circumstances defendant in error was guilty of negligence contributing proximately to her injury. In the recent case of Railway v. Smith, 87 Texas, 348, this court discussed the question of ordinary or reasonable care, showing that it was such care as an ordinarily or reasonably prudent person would have exercised under like circumstances, and that to constitute such degree of care, the quantum of diligence would vary with circumstances. Tested by this rule, in order to exercise ordinary care, it was necessary for the person operating the engine which collided with Mrs. Watkins to exercise much more diligence and watchfulness to avoid injury to persons walking on the roadbed in question, which was in such constant use by pedestrians, than he would have been required to exercise on a portion of the track where persons were less likely to be.
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DENMAN, Associate Justice.
—In September, 1889, the roadbed of plaintiff in-error, in the city-of Fort Worth, Texas, from the Union-
Depot north to Seventeenth street, was constructed across a plot of ground not a public square or street, upon an elevation consisting in part of embankments and in part of a bridge and trestlework over a ravine. Said roadbed appears to have been wide enough for three tracks running practically parallel with each other, with the usual space between. On each side of the bridge was a plank walk, with hand rails, for the use of pedestrians crossing same. Said roadbed on said date, and for a number of years prior thereto, was in almost constant use by pedestrians as a footpath in going to and from said depot. About 10 o’clock p. m., September 20, 1889, defendant in error, Mrs. Kate Watkins, with two companions and her little child, which she carried in her arms, was walking south between two of said tracks on said roadbed, going to said depot to take passage on one of the trains of plaintiff in error, then about due, when a switch engine approached from behind on one of said tracks at the rate of from two to six miles per hour, without ringing the bell or blowing the whistle, or giving any other warning of its approach. When the engine was within a few feet of defendant in error a rumbling noise caused her to turn and look back, whereupon she was so startled and frightened by the close proximity of the engine that she jumped against it, and was knocked down and received the injuries complained of herein. The distance between the tracks at the place of the accident was about eight feet, and defendant in error would not have been struck had she remained where she was before she jumped. It appears that the engineer did not see defendant in error, and was not aware of her presence until he heard her scream when injured.
At the time of the injury defendant in error was a married woman, but her husband died before the institution of this suit, leaving surviving him defendant in error and their two children as his only heirs, whereupon she brought this suit, on behalf of herself and said children, to recover damages resulting from such injuries, and also for expenses incurred in her sickness resulting therefrom. It was shown on the trial that there was no administration and no necessity for administration on the estate of the deceased husband.
Defendant in error recovered judgment in the court below, which was affirmed by the Court of Civil Appeals, and the cause is now before this court on writ of error. ■
It is not made to appear.-that any injury resulted to plaintiff in error from the fact that said children were joined in the suit as coplaintiffs, and therefore it is unnecessary for us to determine whether the court below erred in holding them proper parties plaintiffs. Street Railway v. Helm, 64 Texas, 147; Lee v. Turner, 71 Texas, 264.
The Court of Civil Appeals found, as a matter of fact, that plaintiff in error was guilty of negligence in running the engine so close to defendant in error without giving any notice of its approach. Plaintiff in error complains that this -finding was an error of law, for the reason that defendant in error was either a trespasser or a mere licensee, and
plaintiff in error owed her no duty to keep a lookout to discover her or give her any notice of the approach of the engine.
It is often said that a railroad owes no duty to a trespasser or one wrongfully on its track, except to refrain from wanton injury to him. This doctrine has never been adopted in this State, but has been expressly repudiated. In the case of Railway v. Sympkins, 54 Texas, 618, the court say: “We do not assent to the proposition that a railroad company may not become liable to one who is run over and injured by reason of the want of watchfulness of its servants, although such person may have been originally a trespasser on the track. If a party be wrongfully on the track under such circumstances, or, being there, acts in such a way as to be himself a proximate cause of his own injury, he will be precluded from recovery on grounds of public policy, as being himself guilty of contributory negligence. Although the company’s agents may have failed in proper watchfulness, the injured person is regarded as being himself too directly a cause of the injury to be allowed to complain. * * * We prefer that line of decisions holding railroads bound to exercise their dangerous business with due care to avoid injury to others, as correct in principle and sound in policy, and as protecting even a trespasser who is not guilty of contributory negligence.”
In the case of Railway v. Hewett, 67 Texas, 479, the court (Stayton, J.) say: “Ordinarily railway companies, running cars propelled by steam, have the exclusive right to the use of their tracks, except at such places as they are intersected by public crossings or such private ways as they may permit, and they may therefore expect that no one will violate this right, and may rely upon a clear track; but it is very generally held, that, notwithstanding this, such is the hazardous nature of the business in which they are engaged, it is the duty of such carriers, not only for the safety of their passengers, but for the safety of any one who may be on the track, to keep a lookout.” Artusy v. Railway, 73 Texas, 193, and cases therein cited.
The true rule is, that it is the duty of the servants of the railroad company operating its trains to use reasonable care and caution to discover persons on its track, and a failure to use such care and" caution is negligence on the part of such company, for which it is liable in damages for an injury resulting from such negligence, unless such liability is defeated by. the contributory negligence of the person injured, or of the person seeking to recover for such injury, and the circumstances under which the party injured went upon the track are merely evidence upon the issue of contributory negligence. If such circumstances show that the party injured was a wrongdoer or trespasser at the time of the injury, the issue of contributory negligence is, as a general rule, established as a matter of law; but not so in all cases. ■
It results from the above, that it was the duty of the railroad to use ordinary or reasonable care to discover and warn defendant in error,
whether she be considered a trespasser or a mere licensee, and a failure to use such care was negligence, rendering the railroad liable for such damages as resulted therefrom, unless under all the circumstances defendant in error was guilty of negligence contributing proximately to her injury. In the recent case of Railway v. Smith, 87 Texas, 348, this court discussed the question of ordinary or reasonable care, showing that it was such care as an ordinarily or reasonably prudent person would have exercised under like circumstances, and that to constitute such degree of care, the quantum of diligence would vary with circumstances. Tested by this rule, in order to exercise ordinary care, it was necessary for the person operating the engine which collided with Mrs. Watkins to exercise much more diligence and watchfulness to avoid injury to persons walking on the roadbed in question, which was in such constant use by pedestrians, than he would have been required to exercise on a portion of the track where persons were less likely to be. Whether it was negligence to run the engine up so near behind a woman with a child in her arms in the night-time without any warning of its approach, and take the chances of her coolly walking along where she was, in safety, or of her, under the excitement of the moment, jumping in front of or against the engine, was a question of fact for the jury and Court of Civil Appeals. The jury, upon proper instruction by the trial court, and the Court of Civil Appeals have both solved this question against plaintiff in error, and it must be held responsible for the damages resulting from such negligence, unless Mrs. Watkins was guilty of contributory negligence.
The court below charged the jury, in effect, “that if a portion of the roadbed had been commonly and habitually for a long time used by the public as a footway, with the knowledge, acquiescence, and permission of the company, the company is considered as licensing the public to use such portion of the roadbed for such purpose;” and “that if no such license existed, plaintiff (Mrs. Watkins) could not recover.”
We do not see that plaintiff in error can complain of said charge. The jury and Court of Civil Appeals have both found as a question of fact that Mrs. Watkins was not guilty of contributory negligence. -Under the charge, this finding must have been based upon two propositions: (1) that she was a licensee, and therefore not unlawfully on the roadbed; (2) that she was not to be held responsible for the act of jumping against the engine, under the circumstances.
In regard to the first proposition, we are of opinion that, if a licensee, she was rightfully walking between the tracks, and both she and the railroad were under obligation to use ordinary or reasonable care to avoid injury, but neither was bound to use any higher
degree
of care. To constitute this
degree
of care, however, required the exercise of more vigilance than would have been required of either where there was less probability of injury. This view of the law was recognized both in the charge of the trial court and in the opinion of the Court of Civil Appeals.
Delivered January 21, 1895.
In regard to the second proposition, the court charged the jury, that although they believed Mrs. Watkins was a licensee,, and that the person in charge of the engine failed to use ordinary care in approaching Mrs. Watkins without giving notice, “still, if you believe from the evidence that she acted in a way that a person of ordinary prudence would not have acted when she became aware of the approach of the engine, and that but for such conduct she would not have been hurt, you will find for defendant.”
This charge was favorable to defendant, and should have been qualified by the proposition, that if the engineer was guilty of negligence in running the engine up behind Mrs. Watkins without warning, and if she was not under all the circumstances guilty of contributory negligence in walking where she was, and if she was impelled by sudden terror, brought about by such negligence of the engineer, to jump against the engine, then the railroad would be liable, although she did not act as a reasonably prudent person would.have acted under similar circumstances. Where one by his own wrongful act has so terrorized another that such other is thereby impelled to do an act resulting in his injury, the wrongdoer can not shield himself from liability by showing that the person so terrorized did not act as a reasonably prudent person would have acted under similar circumstances. Railway v. Neff, 87 Texas, 303.
The principles above stated dispose of the errors assigned adversely to plaintiff in error, and the judgment- is affirmed.
Affirmed.