Lyon v. Phillips

BEVY, J. (after stating the facts as above). The appellants asked and the court, refused to give a peremptory instruction to the jury, and it is insisted that the ruling of the court was erroneous because the evidence conclusively established that the deceased was guilty of such contributory negligence as would bar a recovery in the case. In the circumstances it may not be said, it is thought, that it conclusively appears that Collins and the deceased were aware of the approach of the train at a time before they reached the storehouse. It does appear, though, that the headlight of the engine shone directly upon them as they came out from behind the store, the corner of which was 93 feet from the center of the railway crossing; and this fact would go to' show that they knew that the train was approaching the crossing. And it appears that the automobile at the speed at which it was going could have been stopped before it reached the track. But John P. Collins was the owner of and was operating the automobile, and Phillips, the deceased, was riding merely as the guest of Collins. And the negligence of John P. Collins may not be imputed, as a matter of law, to the deceased, Phillips. 3 Elliott on Railroads, § 1174; Garteiser v. Railway Co., 2 Tex. Civ. App. 230, 21 S. W. 631; Railway Co. v. Gibson, 83 S. W. 862. And the want of ordinary care on the part of the deceased, riding with another as his mere guest, would be measured by whether he failed in his duty to keep a lookout and to warn his companion, operating the automobile, when he discovered the approach of the ^rain. 2 Thompson on Neg. § 1621. There is no direct evidence indicating the precautions taken by the deceased. The circumstances arising out of the physical facts immediately preceding the collision alone speak upon the question of contributory negligence of the deceased. Those circumstances do not speak with sufficient weight to. conclusively determine the question as a matter of law. In view of the peculiar facts of the present record, the question of the contributory negligence ¡df tihei deceased was properly, it is believed, passed to the jury for decision in point of fact. By the fifth assignment of error the following instruction to the jury is challenged as erroneous, in view of the facts, viz.: “The burden of proof is upon the defendants to prove by a preponderance of the evidence the defensive matters as pleaded by them.” The defendant specially pleaded contributory negligence of the deceased. And under the evidence on the trial the question of contributory negligence arose to be submitted to the jury. The circumstances in the plaintiffs’ case, as devolved in their behalf, may not be said, it is concluded, to be entirely consistent with due care on the part of the deceased. As the evidence in behalf of the plaintiffs may have been sufficient to- raise a question upon deceased’s want of care, even if the defendant had offered no evidence in that respect, it is believed that the charge as given was erroneous and injurious in this case. A general charge, as this, has been held to be susceptible of the construction of imposing the duty of discharging that burden by the evidence offered by the defendants alone. Suderman & Dolson v. Kriger, 50 Tex. Civ. App. 29, 109 S, W. 373. The court authorized a finding of negligence vel non respecting the rate of speed of the train and of maintaining a lookout upon the locomotive for travelers upon the public road. The charge was objected to and made the basis of' error on appeal. The duty on the part of a railway company of exercising due care in the operation of trains at railway crossings necessarily includes the duty of looking out for and discovering any traveler in the lawful use of the crossing and in checking the speed of the train or using other means to avoid injuring him. It is concluded that the charge was authorized and was not erroneous. Railway Co. v. Smith, 87 Tex. 348, 28 S. W. 520; Railway Co. v. Phillips, 37 S. W. 620. For the error pointed out, the judgment is reversed, and the cause remanded for another trial.