Texas & Pacific R'y v. Howard

Opinion.— In passing public crossings the statute requires that the bell shall be rung or the whistle sounded. A failure to comply with this requirement is, as a matter of law, negligence, and may be so declared by the court in the charge to the jury. T. & P. R’y v. Murphey, 56 Tex., 356; H. & T. C. R’y v. Wilson, 60 Tex., 142. There may be cases where the company’s employees might, as a matter of fact, be guilty of culpable negligence at public crossings, notwithstanding they may comply with the statute in reference to ringing the bell or sounding the whistle; but whether or not such negligence exists is a question of fact to be determined from a consideration of the evidence. At these crossings the exercise of prudence is reciprocal—those operating trains must exercise reasonable care in avoiding collision with those passing the track, and so those who cross the track at such places are required to exercise reasonable care to avoid being injured by moving trains. The degree of care required of each is that which a reasonably prudent person would exercise under like circumstances. While the legislature deemed it necessary for the protection of the public that the signals mentioned should be given, it by no means follows that the employees of the company, in passing public streets and highways, are not required to use other precautionary measures so as to avoid inflicting injury upon others. Whether, under the circumstances mentioned in the charge, the ringing of the bell or blowing the whistle was or was not sufficient to absolve the company from the charge of negligence, was a question to be determined by the jury upon a consideration of all the evidence directed to that issue. If, under the same conditions, a reasonably prudent and [432] cautious person would have used other precautionary measures, then it was incumbent upon those operating the train to have done likewise, and a failure in this particular would constitute negligence. When considered with reference to that which precedes as well as that which follows, it clearly appears that the effect of this charge was to withdraw from the consideration of the jury that question of fact; that is, the court in effect declares, as a matter of law, that a compliance with the statute in this case was not sufficient diligence on the part of those operating the train. This is made more evident by other portions of the charge, in ■which it is said that in such cases “ordinary care would suggest to the defendant to use all available signals and warnings to avoid collision at said crossing.” The case of Eaton v. Erie R’y Co., 51 N. Y., 544, cited in support of the charge, supports the converse of the proposition insisted on by appellees. Bessie Howard, the infant, was not a party to the suit; and while the father in his own right might recover compensation for a loss of her services until her majority, and for expenses incurred on account of the injuries, such a recovery would not preclude her from maintaining an action in her own name for such elements of damage. See G., C. & S. F. R’y Co. v. Styron, ante, p. 275; Cooley on Torts, 135, 228. Reversed and remanded.