Sax Antonio & Abansas Pass Railway Co. v. Gray

BROWN, Associate Justice. Gray filed suit in the District Court of Kerr County against the San Antonio & Aransas Pass Railway *427 Company to recover damages for injuries alleged to have been caused by the negligence of the railway company under the following circumstances: Gray lived in Kerrville, Kerr County, near the track of the defendant’s railroad, and was on his way to the depot, walking along the railroad track, when he heard the train whistle, and looking back,, saw some horses on the track. He then proceeded on his way for a short, distance, when, turning and looking again, he saw two children of Dr. Wright on the railroad track. Gray “kept hollering” at the children to-get off the track, which they did, when the plaintiff’s little boy, about two years old, got upon the track and started down towards his father, who called to the child to get off, but he did not, and the father then started in a run down the track, meeting the child, and in the direction of the train, in order to rescue the child. About forty yards from where the plaintiff started was a trestle or bridge and the child was about fifty-three yards beyond the bridge from where Gray started to-run. When Gray reached the bridge, he saw the child running along the track towards him about thirty yards distant. The train was about one hundred yards from the child and running in the direction where the child was at a speed of about twenty-five miles per hour, neither sounding the whistle nor ringing.the bell. Gray started across the bridge to the child, but fell upon the track and was hurt. He did not see the child get off the track and thought that it was killed. Gray was'injured by the fall on the bridge and was unable to rise, but managed to throw himself off the bridge upon the ground, at which time the train was near the child. As Gray was lying near the track where.he fell from the bridge, one man on the engine was looting right at him and the other was leaning out of the window with his “breast out,” looking as if to see whether i^e child had been knocked off. The train did not slow up, ring a bell, nor blow a whistle, except at the time Gray first heard the whistle. These facts occurred within the corporate limits of Kerrville. Plaintiff introduced in evidence an ordinance of the city of Kerrville duly enacted which prohibited railroad locomotives, when running in the limits of that city, to run at a greater speed than ten miles per hour, and required that upon all moving locomotives the bell should be kept ringing until it stopped. Plaintiff’s petition alleged substantially the facts above stated, and, upon a trial, verdict was rendered and judgment entered in favor of Gray against the railroad company, from which an appeal was taken and the judgment affirmed by the Court of Civil Appeals of the Fourth District. The fact that Gray was wrongfully upon the track of the defendant at the time that he discovered the peril of his child does not make him a trespasser in his subsequent efforts to rescue the child from danger. If he had been off the track, he would have been authorized by law to go upon it in order to make the rescue, and, being upon the track, it was equally permissible for him to run along it as the best and quickest method by which to accomplish -his purposes. One who endangers his own life in order to save the life of another person is not chargeable with *428 being a trespasser npon the railroad track, nor does his entering upon ■the track in the presence of danger for such purpose lay him liable to ihe charge of contributory negligence. Eckert v. Railway, 43 N. Y., 502; Spooner v. Railway, 115 N. Y., 22; Becker v. Railway, 61 S. W. Rep., 997; 1 Shearm. & Redf. on Neg., 5 ed., sec. 85. The testimony of Tom Tarver was properly admitted as a part of the res gestae. He testified that he was at the depot and heard the fireman or engineer say they “came near running over a man down there;” this occurred within six minutes after the train passed Gray. The declaration was made within a few minutes after the occurrence of the fact and under circumstances which show that it was not prompted by any intention to misrepresent the truth of the occurrence. Railway v. Anderson, 82 Texas, 518. The trial court charged the jury as follows: “You are instructed that it is the duty of a railway company and employes in charge of one of its drains moving along its track on approaching a public crossing to blow the whistle or ring the bell on the engine pulling such train, and to keep -such bell ringing until such train shall have passed over such crossing; and it is further the duty of such railroad company and employes in charge of such train, while moving within the corporation limits of the •city of Kerrville, Texas, to regulate the speed of such trains, that such •speed shall not exceed the rate of ten miles per hour, and a failure of such railway company, or its employes, to comply with the above requirements, or with either of them, would' constitute negligence upon the part of such railway company; and if you believe that the plaintiff •started in a run back to reach the child before the train could reach it, and without negligence on his part lost his footing and fell on the trestle, .and that he had no time in which to arise and get off of said trestle in time to prevent said train from running over him, and that, to save himself, he threw himself off of said trestle as claimed by him in his petition. And you further believe from the evidence that the plaintiff has received injuries, if any were received, without negligence on his part, •and that the approximate cause of such injuries, if any he has received, were caused by the failure of the defendant to ring the bell and blow the whistle, if there was such a failure, and the excessive speed of the train, if it was .excessive, as explained to you in the first part of this paragraph, then and in such case you will find for plaintiff.” The testimony of Gray shows that he saw the train and heard it whistle long before it reached the crossing of the street, and that the ■failure to blow the whistle or ring the bell at the crossing of the street -could have had no possible effect either in causing him to go upon the track or remain upon it. The child was not crossing the railroad at a public crossing nor at a place shown to be used as such; besides, the age of the child and other facts show that it was following, its father, and repel any idea that might exist that the child relied in any maimer upon the blowing of the whistle at the crossing as a warning for it to leave the track. The facts of this case clearly show that the failure to blow the *429 whistle and ring the bell at the crossing had no influence in producing the injury to the plaintiff, and it was error in the court to charge the-jury that a failure to perform that statutory duty rendered the defendant liable for the injuries which the plaintiff received. For this error, the judgments of the District Court and the Court of Civil Appeals are-reversed and the cause is remanded. Reversed and remanded.