·
864
.,
-
.
'
plaintiff wall on the railway driving his two donkeys up and along the track in the direction of the switch he discovered the engine approaching at a distance, according to the testimony of the plaintiff himself, of 40 or 50 yards. ',Some of the witnesses, however, place it at a greater and some at a less distance. That the plaintiff was walking up the track, in view of the advancing engine, there is no doubt. It is furthercpDceded that at the point where plaintiff got pponthe track there was neither a street norJ>ublic crossing, the public'ctQssingbeing something over 200 yards west." From tho phice of accident, looking east, the switch engine, on account of the curve in the road, could be seen only about 117 yards, and persons on the engine could see an equal distance looking west. As to the rate of speed of the engine prior to and at the time of the accident the testimony is conflicting, and you must satisfy yourseh'esupon that point from a consideration of all the facts and circumstances in evidence. The plaintiff further testified that an employe ofthe company on the engine waved his hand to him .when the engine was 40 or 50 yards distant. 1'he plaintiff insists that after he saw the approaching engine he did what he could to remove himself from the impending danger, but that he was unable to do so owing to the short interYlll which elapsed between the time be saw the engine and tbe collision which ensued. It is urged, however,'by the defendant that could have easily protected himself by stepping on either the side of the track l but that, instead of making his escape from a known danger; he was engaged in the efrort to drive liisdonkeys froni the track until it·was too late to save himself. In viewof the above facts, and others ,detailed by tbewitllesses, it becomes important in' this 'immediate tt}'consider the legal rights and duties of the plaintiff and defendant's employes, respectively. It is maintained by the defendant that the plaintiff was on the track; that the employes on the engine had the right to a clear and that theyfurther were authorizedtopresume that persons would remove themselves from the track before an advancing locomotive. Upon these points you are in8tructed that the employes operating the engine had the superior right to the use of the railway track for the purpose of enabling them to discharge the duties which the company owed to, itself and the public. The phlintift' had no lawful right to use the track as aroall-way for himself and animals, (Railway Co. v. Garcia, 75 Tex. 590, 13 S. ,V. Rep. 223,) and if he voluntarily chose to assume the risk of appropriating the track for such purpose, and his injuries resulted directly from his conduct in that respect, upon 'him must fall the consequences of his acts, and he cannot recover. Railroad Co. v. Houston, 95 U. S. 702. Touching the duty of a railway company to persons Oil the track, it is said by t14e supreme court of this state, in Railway Co. v. Richards, that "a duty may be general, and owing to everybody, orit maybe particular, and owing to a single person only, by reason of his peculiar position. * *, * The general duty of a railroad company to run its trains with care becomes a particular duty to no one until1,l.Eiis in a fjition to have a right to complain of the neglect; the tramp Who
SALDANA II. GALVESTON, H. &:
e.
8(;5
ride cannot insist that it is a duty to him; neither can he who rillikes a highway of a railroad track, and is injured by the train." 59 Tex. 877. The principle, however, asserted by the court in the Richards Case cannot be taken without qualification. It is properly said by the same court, in Railway Co. v. Wei8en, that "a man does not forfeit his life, or his right to remain whole, by going where he has no right to go, or being where he has no business." 65 Tex. 447. Hence, although a man may be unlawfully on the track, may be a trespasser, the employes of the COOlpany would have no right to carelessly and negligently run over himafter his presence and danger became known to them. The rule is thus stated by the supreme court of this state: "A plaintiff may recover, even if his own negligence exposed him to the rIsk of injury, if the defendant, after becoming aware of the danger, failed to use ordinary care to avoid the injury. * * * When the danger becomes known, the failure to use such «are as a prUdent man would. undel' the circumstances, amounts to indifference, from the consequences of which noone ought to be 'excused." Railroad Co. v. Cocke, 64 Tex. 158. '
Your attention is directed to another principlebearlng upon the question of negligence in this case,and it is this: "The law," says the supreme court of this state, "presumes that a person walking upon a railroad track will leave the same in time to prevent injury from an approaching train of which he has knowledge, or should have by the ordinary use of the senses of hearing and seeing, and the managers of the train may act upon this presumption." Railway Co. v,. Garcia, 75 Tex. 591, 18 S. W. Rep. 228. It is not denied in this case ,that the plaintiff saw the approaching train. The employes on theengille, therefore, had the right to presume that he would leave the track in time to avoid jury, It was, however, the duty of the employes. at the instant they covered he would not leave the track, to use a high degree of care, .that is, use all the efforts in their power and within their means and ability to, stop the train, and prevent the same from striking the plaintiff. But if, notwithstanding such efforts, they were unable to stop the tr&iri in ti,D;le to prevent the injury, then the employes were riot guilty of negligence. 75 Tex. 590, 13 S. W. Rep. 223. . 'It is further insisted by the plaintiff' that it was the duty 'of the persons operating the engine to ring the locomotive bell, or blow the,whistle on approaching the crossing, where the public road crosses the railway track, at a point about 200 yards west of the place of accident. He alleges in his petition that, had the company's employes on the engine blown the whistle or rung the bell, hewould have received timely warning of the approach of the locomotive, and "would have removed his said donkeys and himself to a safe distance from said railway track before said switch engine could have reached the place where plaintiff was injured." The state statutes provide: "A bell of at least thirty pounds weight, or a steam whistle, shall be placed on each locomoUve engine, and the bell shall be rung or the whistle blown at the distance of at least eighty rods 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." Rev. St. Tex. art. 4232,
v.4:3F.no.12-55
866
·ll'EDERAL REPORTER,
vol. 43.
or both. whea 'l\train is approaching a crossing, will absolutely render a rail, way company for anJnjury received by a person 111 attempting to cross track; blltit,l;loes provide that If these things are not.done, the company;. shall .be liable,foraI.1 damages which shall besllstained, by person by reason ofsuehneglect." Railway 00. ' , Graves, 59 . Tex. 332. "d: , " · "1':': " ' ' " ,i
And for the statute further provide&that the corporation owtiihgtheroad··sball "be liable for all damage which. shall be sustained, by any· persoB ,by reason orsuch Referring to this statute Mr.' Chief Justice·,S'1'AYTON says: ;, '''.Fhe statute'does not 'provide that a failure tori ng a bell or blow a whistle, i·
To entitle a party to recover for failure to give the, statutory signals. theinJury must be the direot and, proximate result of the failure to give them. The nep;1igence, in such ,case, must cause the damage. 1.'here-: fore negligence on the part of the c6mplainingparty', wbich is the ofth.e injury, will defeat bis recovery, altb9ugh the railway company Dlay have giyenthe which thelawrequires,'toiIi-; of for, in that l;lecontribut.es"to not of the company's neghgen?e 10. the. ,RauwayCo. Graves, 59 !ex. 332; Ratlroad Gh.. 702. The purpose of thesigIlal is to givewam-, ingt?t:tlie ,:approach t6 petsons ,at or n,elU'cl'ossi'ngs and on th!3,· traqk, qo. v. Gray, G5Tex. 35, 36;) bllt notice of that fact deElqually effeotive,' (RailwayOo.v. Graves, r Henoe, if tfperson, ,on the" trt\ck 'has t,imely notice of an: ,it fact, in this' case, 16u tn ust the testImony,) be could not complilii{Qfthe' Mlqretd for .as to himt1.Ie Signals be wholly 'After a:11,sehtlemen,it isa q'Uestion of t;legligence, 'and negligence causing or Producing that question )?oumust solve for y()u'rselves froin a. 'cou::lideratlOn of all the facts and circumstances in evidence. Whetherthb.signal'wasglven by ringing the bell or bloWing the whistle is diSputed'question. If It' was given, as defendant contends, the cause of complaint. ' If it wasD.9t glven, then. yo,u, w,he.ther .l?laintiff's,inJurles resulted'd!rectly and proxitilately from tbe employes to gIve the statutory) Review the, case, 100*' and examine every' ,to u
:act
to,
wbich 'the'law, as, above explained, required him to exertJiseto entitle him to a recovery; lmdalso detetmine whether the of defendant, at just prior to plaintiff was hurt, discJlarged the duties wbich the law enjoinedupontljem toUching i your province' tq )from a Qf,all the facts arid; .Circumstanoes. in 'l,vith, charge of thecourt,wbet!;ler, :ther,e wa,s. negljgence, on the a.nd, if.so, whetheJ:: llheinjuries of plaintiff · · \J'
WIsqONSIN .
B. c:;O.V. FQRSYTHE.
867
were occasioned entirely by the negligencl,'!or improper conduct of the defendant, Or whether the' plaintiff himself so far contribgted to them by his own negligence or want of ordinary care and caution that but for such negligEmceor,want of caution on his part the misfortune , would not have happened. If you find that the defendant's employes negligent, and that the plaintiff's injuries were occasioned entirely by their negligence or improper conduct, then your verdict should be for the plaintiff. ,ButU, on the, other hand, you are satis;£iedthat the defendant's employes were not 'negligent on the ollcasionin question, or if they; Were negligent, and you find thlitplaintiff himself so farcontributed tohis injuries, by negligence or want of c81'eand caution, tnlJ"t b\lt fo'r his negligence or want of and caution he, would not haNe' been injl,lred, then, in either of such events, your verdict should be for the defendant. If" in view of the testimony and the foregoing instructions, yourverdict be in favor of the plaintHf, you will a\vard him such an amount of actual damages as will compensate him for the injuries he has sustained. In making your estimate of such damages you are authorir,ed to take into consideration the phy$icaland mental suffering of the plaintiff, the probable efrectofthe injury in future upon his health, and the use of his injured limbs, and his ability to labor and attend to his affairs, and, generally, anY reduction of hie power and capacity to earn money and pursue the course of life which he might otherwise have done. Railroad Co. v. RandaU, 50 Tex. 261; Brown v. Sullivan, 71 Tex. 476, 10 S. W. Rep. 288. The of the law in cases like the present i,8 simply 1.0 compensate the injured party for the injuries he has sustained; nothing more. You are the exclusive judges of the credibility of the witnesses and of the weight to which their testimony may beeutitled, and you are authorized, in reaching a conclusion upon the issues in the case, to base your finding upon a preponderance of the evidence. As impartial jurors, you will fairly consider the issues betweenthe parties, and rench such a conclusion as will commend itself to your own judgments, and such as will attll.in,aB nearly as you may be able, the very right and justice of the cause.
WlSCONSINCENT.
R. Co. 17. FORSYTHE.
SAME "'. LENTY.
SAME 'D.
BEKKEN.
(Circuit Court, W. D. WiBconnno .September 15, 1890.) PmlLIO LA.'tDS-RESERVATIONS AND DONATIONS.
City, to tbe St. Croix river or lake, .between townships 25 and 81, and from thence to the west end of Lake Superior, and to Bayfield, and also from Fond du Lac, on Lake. Winnebago, northerly to the state line,every alteruate section of land desiltI18ted by odd numbers for silt sectioDs in width on each side of said roads, respectively," with indemnIty limits of 15 miles from each road; the lands unsold to revert ;to the United Stata, unless the roads were completed within 10 years. In anticipation i)f;tIm passage of tbat act, tba commisBioner of the laDd-01tice, May 29, 18W,
in the construction of"a railroad from Madison or Columbus. by the way of Portage
Congrellf, by an act approved June a, 185t1, (11 Bt. 20,) granted to Wisconsin, to aid