This suit was brought by appellee to recover damages for personal injuries to himself and for killing his horse resulting from a rear end collision of freight trains, plaintiff riding in the car with his horse on the front train.
Upon trial and verdict for plaintiff for $500, the value of the horse, and $10,000 for his personal injuries, judgment was rendered for him from which the railway company has appealed. The case was before this court on appeal once before and will be found reported in 8 Texas Civ. App. 376[8 Tex. Civ. App. 376] (27 S.W. Rep., 769 to 772), to which we refer for a better understanding of the issues now before us.
The facts are briefly as follows: Plaintiff lived near the town of *Page 210 Lampasas, Texas, and was twenty-six years old, and at times kept and raced fine race horses. He attended the fair at Dallas in the fall of 1891 with a fine race horse, attending the race with the horse whose value is sued for. On November 3, 1891, desiring to return home, he shipped the horse on defendants' cars from Dallas to Temple, Texas. The horse was put in the car to himself. He signed a contract with defendant for the shipment of the horse after the horse had been placed in the car and the train was about to "pull out." He kept the contract and a first-class passenger ticket for his own transportation which he had previously bought at Temple. The rules of the company were that when only one horse was shipped the owner or person accompanying the same had to purchase such ticket. He then went to the car where his horse was already placed; found a man waiting there who asked him for his contract, which he exhibited with his ticket. He also met another person there who called for his transportation, which he again exhibited, and of whom he asked if the ticket was all right. The answer was "Yes;" and he was told to get in. He got in the car with the horse and closed the door and in a few minutes the train "pulled out," he riding in the car with his horse. After arriving at Waxahachie he was again asked by the conductor for his transportation, when he again exhibited the ticket. The conductor after examining it handed it back to him. Between Waxahachie and Hillsboro two men got in the car. At Hillsboro the crew of the train was changed. After the train passed Waco the conductor came around and called for his transportation again. He showed the contract and ticket. This was in the night time and the conductor had a lantern. The conductor handed him back the contract and kept the ticket. Plaintiff was at this time, and had been all the time, in the car with his horse. Between Waco and Temple, about 2 o'clock at night, while this train was stopped, it was run into from the rear by another train, and the car in which plaintiff was riding with his horse was crushed to pieces, the horse and four persons beside plaintiff riding therein were killed, and plaintiff was injured as alleged in his petition, because of which he incurred expenses as alleged. The horse was shown to be worth $500 or more. The train was a freight train divided into two sections; the train was numbered 101 and the sections were called sections first 101 and second 101; plaintiff was riding on the first section, in the second car in front of the caboose. These sections were, by the practice and custom of the company, required to keep at least five minutes apart, and at that time there was a bulletin of defendant ordering freight trains not to exceed twenty-three miles an hour, and the distance between sections of freight trains running at that speed would be about two miles. The second section overtook the first at Grandview, Hillsboro, West, Eddy and Waco stations. The second section came up behind at Eddy about ten minutes after the arrival of the first section and it was not seen again by the conductor of the first until it ran into it. In running section one over a curve, the conductor from the cupola observed fire flying from the wheels and knew, he says, that *Page 211 the brake "was setting and the air was being stuck;" that is that the brake was tightening. "Turning the cock on the last air car, bursting a pipe, or breaking in two will do it." He saw the train would stop; "the air stuck and was locking the wheels and the train was beginning to stop." The first thing the conductor did was to tell the brakeman to get his red light and go back and flag the second section, and he, the brakeman, got off and started back. The train was going, as the conductor testified, fifteen or eighteen miles an hour when the brakeman got off, and after this the train went on some seventy-five yards, when it stopped. The conductor woke up the occupants of the caboose, and went forward to the head brakeman to see if he knew anything about the air; he got about to the third air car (the air cars are next to the engine) and was looking over them to see what was the matter with them; had bled two to see if it released the brakes, and while he was bleeding a car he heard the engineer and fireman or brakeman say, "Here they come and they are going to hit us." He, the conductor, looked back and saw the second section of the train coming, and it was about one-quarter of a minute from that time until it struck. Nobody was hurt in the caboose; the platforms were knocked off it, and it was knocked off both tracks and its trucks. The engineer of the second section could only see the first section after he got about half way into the cut where the first section had stopped. There was a curve there and he could have looked across and seen it. It was a custom of defendant to allow persons in charge of fine horses to ride in the same car in which the horses were shipped to take care of them.
There was a stipulation in the contract of shipment of plaintiff's horse, "That the person or persons in charge of said stock under this contract shall remain in the caboose car attached to the train while the same is in motion; and that whenever such person or persons shall leave the caboose car or pass over or along the cars or track, they shall do so at their own risk of personal injury from any cause whatever." This clause of the contract was pleaded by defendant in its answer.
Plaintiff was in charge of his horse under the contract. Plaintiff read in evidence the following rule issued by defendant company to its train employes, and in force at the time of the collision:
"Rule 22. When a train from any cause has to stop on the main track in such a position as to endanger it from approaching trains it must be protected by torpedoes and red signals in the following manner: Flagman will place one torpedo on the rail at least twenty telegraph poles from his train; place one torpedo on the same rail at a further distance of ten telegraph poles from the first torpedo, and then take such position about midway between the two torpedoes to stop the train with red signals. Rule 121. Freight trains in sections, or running near each other in the same direction, must keep five minutes apart, except on approaching meeting points, when they will run very carefully, and with trains under control."
Stalker was the brakeman sent back by the conductor to flag the *Page 212 second section of the train. He noticed the fire from the wheels that had the air on them next to the engine. This caused a jar and the slowing up of the train, and the conductor instructed him to get a red light and go back to flag the second section of the train. He got down as quickly as he could, the train running about fifteen miles an hour, as he testifies. He took along torpedoes, a white light and a red light, — got off by the rear steps of the caboose. As he got off, the bank being steep, he slipped and slided down about twenty feet, but got up as quickly as he could and got back on the track and ran as quickly as he could to stop the second section. He also fell into a wooden bridge, but recovered himself and got up. He skinned himself on the bridge and scrambled over the bridge, ran back as hard as he could, and got very near ten telegraph poles (as near as he could remember). This carried him about the center of the cut, it being a deep cut. When he reached this point he saw the headlight and the engine was at this time at the north end of the cut, the cut being, as he says, about twelve car lengths. He could not tell the rate of speed of the train. He swung the light across the track and the engineer called for brakes by a whistle — one short whistle — and he heard the reversal of the engine. He says the only time he lost was when he slipped and fell through the bridge. He did not return, but went on to flag the passenger train that was following this section of the train. He got about three-quarters of a mile when the rear brakeman of section two came back and relieved him for the purpose of flagging the passenger train. He says that when he saw the engine of the second section it was about ten telegraph poles from the caboose of section No. 1. Section two was a coal train of eighteen cars. It was not supplied with air brakes. He says it was impossible in the distance between the two sections to stop section two from the time he signaled it before it struck the caboose, without air brakes. From thirty to thirty-two telegraph poles make a mile, so he was nearly one-third of a mile back from the caboose when he flagged the train. He says he was about two minutes, after he left the caboose, before he saw the rear section of the train; was not certain that it was not as much as five minutes, but testified that two and one-half minutes nearly cover the time. But he does not swear that the time is accurately fixed.
The foregoing are all the facts that need be stated at this time. We will state any other facts necessary in discussing the issues raised by the assignments of error.
Opinion. — Appellant contends on this appeal, as it did on the last trial, before the court below, that the written contract permitted the plaintiff to ride in the car with his horse, but that he agreed to assume all risk of riding elsewhere, and therefore that the court below erred in admitting testimony showing that it was the custom and practice of defendant to allow persons in charge of fine horses to ride in the car with them, as such testimony would be immaterial; and that the court erred in instructing the jury that the object of such testimony was to *Page 213 show that the provision of the contract relied on by defendant, as to riding in the caboose and assuming the risk of riding elsewhere, had been waived; and that the court erred in not giving instruction asked by defendant, to the effect that the legal effect of the contract required him to ride in the caboose, and that if he was fit to ride in the car with his horse, and it was more dangerous than riding in the caboose, he assumed the risk, and that if he had remained in the caboose and would not have been injured, the jury should find for the defendant.
1. We think our former opinion correctly states the law as to the custom of permitting parties, situated as was the plaintiff, to ride elsewhere than in the caboose, in violation of the contract, and we refer to that opinion on this subject. We then held that the testimony as to the custom was clearly admissible to show a waiver of the contract prohibition to ride elsewhere than in the caboose. The testimony was admissible, notwithstanding the construction of the contract by defendant that it expressly allowed the plaintiff to ride in the car with his horse. Indeed the charge requested by defendant construed the contract to mean that it required plaintiff to ride in the caboose. We therefore think it was not error for the Court to advise the jury that the testimony of custom was admitted for the purpose stated. We also think defendant cannot consistently contend that plaintiff was permitted by defendant to ride in the car with his horse, and yet that if he did so, defendant would be relieved of liability for his own negligence in case he availed himself of the permission. The contract, taking its provisions together, amounted to a prohibition of riding elsewhere than in the caboose, and this prohibition might have been waived by the consent of the company permitting the thing prohibited. Custom showed this consent or waiver. It could not be said that, if the company could have been present in person, and being so present, consented to plaintiff's riding in the car with his horse, it would not have waived the contract prohibition. In the management of its affairs it could have legally waived the contract stipulation, and having done so, it cannot say that plaintiff assumed the risk of doing so from every cause. It cannot in such case be heard to say that it would be relieved from its own negligence. The position of appellant on the point, it seems to us, cannot be approved by the courts.
2. It is insisted by appellant that the court below erred in the fifth paragraph of its charge in not limiting the care demanded of the carrier to the highest degree of care consistent with the practical operation of railroad trains. The charge of the court only required the company to use ordinary care and the court did not say a word about the highest degree of care. The court's charge expressed a correct principle of the law after defining ordinary care in stating that "the exigencies of the particular case dictate and measure the care required." Defendant requested a charge which limited the care of the company to the highest degree of care consistent with the practical operation of its trains. Defendant cannot complain of the court's refusal to give the charge *Page 214 as it was more onerous on it than the charge given by the court. The charge given only made defendant liable for its failure to use ordinary care. The court's charge was correct and needed no explanations as asked by defendant.
3. The fourth paragraph of the court's charge is as follows: "You are further instructed that if you believe from the evidence that when the train in which plaintiff was riding came to a stop that there was danger of the same being run into by the second section, and that plaintiff's life and limbs were thereby put in peril, that the conductor in charge of the said train knew of the said danger and of the said peril to plaintiff, if any, or as a person of ordinary care and prudence should have known of the same, and you believe that plaintiff was ignorant of any such danger, if any, and had not equal means with the defendant, The Missouri, Kansas Texas Railway Company, and with said conductor of knowing thereof, and you believe that said conductor, after he became aware of said danger and peril to plaintiff, if he became aware thereof, or after he should have become aware thereof as a man of ordinary prudence, had ample time by the exercise of reasonable effort to warn plaintiff of the said danger, and you believe that as a man of ordinary care and prudence under the circumstances, it was his duty to warn plaintiff, and you believe from the evidence that had he warned plaintiff, plaintiff would have escaped without injury, you will find a verdict for the plaintiff, even though you may believe he was violating said provision of the contract by riding in the car with his horse, or that by riding therein he did that which a man of ordinary care would not have done under the circumstances. By ordinary care, as herein used, is meant the care and prudence which a person of ordinary care and prudence would have used under the same or similar circumstances."
This charge is objected to because it is said to be a charge upon the evidence, and directed the attention of the jury to particular evidence presenting a theory of plaintiff as to defendant's liability; that it instructed the jury that the conductor was required to notify plaintiff of the fact that the train had stopped without regard to the question of whether the failure to warn was negligence and that it was erroneous in that it instructed the jury that the state of facts therein set out would constitute negligence as a matter of law.
We do not believe any of the objections made to the charge should be sustained. If plaintiff were guilty of negligence in riding in the car with his horse and the conductor knew it, or ought to have known it by the exercise of ordinary care, and his position was one of peril under the circumstances, and the conductor knew this fact and the plaintiff did not know it, it was the duty of the conductor to use ordinary care to warn him of his danger; and if by so warning him, plaintiff would not have been injured, defendant would be liable for the injury. This was a separate and distinct ground of recovery set up by plaintiff in his petition and it was proper to submit it to the jury. The charge was not subject to the criticism that it selected *Page 215 particular parts of the testimony as a subject of recovery. The testimony warranted the charge. The conductor did know that plaintiff was in the car with his horse, and in that position he was in imminent danger, a fact that the conductor ought to have known; and the testimony warrants the conclusion reached by the jury that if he had been warned in time he would not have been injured. That he was injured there can be no doubt, and this was a result of his being in the car with his horse. There is no conflict in the testimony upon this point. The conductor warned other persons in the caboose and the jury were clearly right in finding that if he had also warned plaintiff and had ample time to do so, he would not have been hurt. The court did not charge that the facts stated would be negligence. The charge carefully advised the jury that it was necessary to find the conductor was not exercising ordinary care, in knowing the danger and in failing to warn the plaintiff, to justify a verdict for plaintiff on this branch of the case. The charge was the law as to proximate cause, telling the jury that they must find that plaintiff would have escaped without injury if he had been warned before defendant would be liable. There is, however, no objection to the charge as to proximate cause. The charge was not erroneous as stated in the assignment of error addressed to it.
Defendant asked the court to give the following charge, which was refused: "That if you believe from the evidence, that the accident of the second section by which the plaintiff was injured, if injured in the accident, was the result of the flagman not getting back far enough to give the proper signal to the engineer of the second section, and if you believe that the failure of the flagman to get far enough back to give the proper signal, was the result of his falling into or through a bridge, and that in so falling there was not any want of care on his part under the circumstances, then you are instructed that if the accident was the result of such failure of the flagman to get far enough back, and was not from any other cause, the defendants are not liable in this case."
In our opinion the testimony did not warrant the charge. When he got off the caboose the flagman fell down the embankment about twenty feet, "but," he says, "I got up as quick as I could and ran back," etc. "I also fell into that wooden bridge, but recovered myself and got up. I skinned myself and scrambled over the bridge and ran back as hard as I could and got north very near ten telegraph poles as near as I can remember." Again he says in another part of his testimony: "The only time I lost was when I slipped and fell through the bridge." The conductor testified that "right at the wreck, Harry Dane (the locomotive engineer of section two) asked me why I did not have the flagman back farther, and I says, `How far back was he?' and he says, `He was not back over ten, I think ten telegraph poles,' and I asked Stalker why he was not back further and he said when he got off he slipped and fell down the dump, there is a little dump of six or eight feet, and when he started to run back he fell into a little bridge, and then got up and *Page 216 started from the bridge on a run, and he got right back in the edge of the cut." It is not shown that any appreciable time was lost by the brakeman at the bridge upon which the charge asked could have been based. Some time must have been lost in slipping down the embankment, twenty feet, and in getting back on the track. The stumbling into the bridge could not have been the only cause of the accident. The testimony would have authorized the conclusion that the second section of the train was running too close to the first section; or the negligence of the company may have consisted in failure to have the air brakes of the first section of the train in repair, or in failing to move it on out of the way after bleeding the cars provided with air brakes. At all events, we are satisfied the testimony does not indicate that the time lost by the brakeman in getting over the bridge should be made the sole cause of the collision, and it would not have been proper to submit the question to the jury. No witness estimates the time, and the circumstances do not indicate that the collision should be attributed solely to trouble in crossing the bridge, a "little bridge." The general charge of the court that plaintiff must show negligence of defendant causing the injury before he could recover was sufficient. The defense could not under the testimony rest solely on the time lost at the bridge by the flagman, and the court should not, by giving the charge asked, have intimated to the jury that they could so find the fact.
5. Appellants ask a reversal because the verdict is excessive and not supported by the evidence as to the item of damages for personal injuries, "Because the proof did not show that plaintiff was incapacitated to follow his business of horse racer, and showed that he had during the three years since the trial been following said vocation regularly; and the amount awarded plaintiff for such personal injuries was far in excess of a proper and reasonable allowance to him for the injuries sustained. "All the facts were before the jury and we think they abundantly sustain the verdict. We will not presume that the jury failed to give due consideration to facts tending to show the ability of plaintiff to engage in horse racing as he had done before his injuries. Plaintiff testified: "I was lying down in the car where my horse was. I suppose it was between two and four in the morning. I had been asleep and was probably dozing. I found myself thrown with pieces of timber that were flying and sliding together down the embankment. The car I was in was crushed to pieces, all broken up. There were four other persons in the car; they were all killed. I think there was one car between my car and the caboose, and the length of the car was thirty-four feet. There was about thirty-four feet intervening between the car I was in and the caboose. I was thrown with the pieces of the car, the horses, men and all; we seemed to slide down the embankment under timbers. I could not see anything — timbers were striking me. I was struck on the head, back, legs and all parts of the body; there was scarcely a place on me that was not bruised. The skin was nearly *Page 217 all knocked off my hands; I got up by climbing till I got on top of the mass. The first thing I saw was the men killed that were in the car with me. It was a few seconds or minutes from the time the car struck till I was out on top of the mass of broken timber of the car. I was bruised on the head, face, hands, back, legs, arms and all over my body. I don't know how I got from the car to the caboose. I became insensible. When I became conscious, the first thing I knew I found myself in the caboose; that was sometime in the day about 7 or 8 o'clock; daylight had come. I don't know how long I remained in the car. At times I roused up and remembered things. I was taken to Temple and from Temple home to Lampasas. From the caboose I was taken to a wagonette by men who lifted me up by taking hold of my legs and body and laid me on the long seat in the wagonette. From this wagonette I was taken to the doctor's office. He worked with me some time; I don't remember how long, nor what he did. There were times when I did not know anything that was done. From there I was sent to the depot in a hack, and carried home on the train. The train reached there in the early part of the night, the next night after the collision. I was carried to a hack from the train and laid on a seat and from there I was hauled home. From the hack I was taken to my room and laid on my bed. I sustained personal injuries in the wreck. My head was bruised. The back of my head was all bruised; part of my neck; my body was crushed and I seemed to be bruised inwardly. I spit blood; my back was wrenched awfully; my legs were bruised — my feet and hands were bruised — there was hardly any skin left on my hands at all. I remained in bed a number of weeks after getting home. Dr. King waited on me. He dressed my wounds, examined me and gave me medicine. He came to see me twice a day for a number of days. As much as two weeks after that he came once a day — occasionally twice a day. * * * I was confined to my bed a number of weeks before I was out at all. It was about six weeks before I was out of bed. After getting out of bed, I was set in a chair several times. For quite a while I would sit up for a few minutes, and then go to bed again. After that I would walk with the aid of crutches. It was three or four months before I got out of the house at all. When I went out it was with the aid of crutches. I have used crutches ever since. Developed soreness in my backbone and pain in my head. I have been spitting blood for a number of months — had a cough and spit blood. It seemed to be the left lung that was injured. * * * My eyesight has been injured. It weakened it. I could not scarcely read at all at night. I can only read for a short time. When I read for any length of time the words run together and glimmer. My eyesight was good before the accident. My lungs and chest were in good condition and my general health was good before that time. I was very strong and active, and had good health, was sound in limb and body and had no infirmity, or deformity. My legs are weakened. I have a feeling of numbness in them, a pin and needle feeling, like *Page 218 they were asleep, and at times a burning and tingling pain. I cannot direct the movement of my legs as I could before the injury. I cannot walk a step without the aid of my crutches, and have not been able to since the injury. I cannot rise without holding on to something, nor sit down without support. At times my urine seems to collect and I have to pass it right away. If I don't it comes itself. At other times I may go, and feel a desire to go, and it is only a dribbling and don't amount to anything. This was not the case before the accident, but has been ever since. After first lying down at night I often draw water two or three times before going to sleep at all. My sleep is very bad, I scarcely ever rest well. I will sleep one or two hours and then lie awake a long time." Being asked about his sexual powers, he testified that before the accident they were strong, but since has had very little — no desire, or scarcely any; and that there was no impairment of these organs before the accident. He is now scarcely ever well — has been under treatment of doctors since — has paid to them about $300, and has never been free from pain since his injuries. He was before engaged in and was looking after a farm, raising stock, buying and selling horses, and getting them in condition to sell. His average earnings up to that time were about $75 per month, and since he has not been able to pursue any business and has earned "scarcely anything." He has no profession — not well educated — can read and write and make ordinary calculations. The last trial was on the 7th day of January, 1895. He was then 29 years old, past, was born September 24, 1865. Physicians testifying corroborate the statement of plaintiff as to his injuries and show that he has now symptoms of paralysis in his lower limbs and that he will probably never fully recover from some of his injuries. He is not a married man, and lives with his father and family. He attended fairs in the state, with race stock. He entered his horse (that was killed) in the races at the Dallas fair. He sometimes bets on the races and made some bets on the side in the races at the Dallas fair. Has farmed and gardened some on a small scale, and raised fruit. Lived with his father who is 70 years old and head of a family — had other younger brothers, and he had charge of the whole place before his injuries. He was at Dallas at the last fair before the trial.
Our conclusion is that the facts warrant the amount of the verdict. The charge of the court presented the law of the case, was full and clear upon the issue of negligence on the part of the defendant, and contributory negligence on the part of plaintiff.
We find no error in the charge or other ruling of the court below assigned by appellant, and the judgment is affirmed.
Affirmed.
Writ of error refused. *Page 219