Girard Street in the city of Houston crosses the track of the Missouri, Kansas Texas Railway Company of Texas near to a bridge over Buffalo Bayou. The general course of the street at that point is east and west, the railroad running north and south. An engine with seven freight cars attached was, on the day of the accident to the plaintiff, moving southward on the railroad to the Houston East West Texas Railroad depot, which was south of Girard Street, The locomotive and cars stopped at the depot of the Missouri, Kansas Texas Railroad Company, about 150 feet north from Girard Street, for the purpose of getting orders to govern its movement. When it started from that point southward towards Girard Street, the whistle was not blown nor was the bell rung. The point at which the railroad crosses Girard Street was near to the bridge on the bayou, and there were a great many people who crossed upon this road during each day, it being one of the principal streets leading from the Fifth Ward to the business portion of the city of Houston. The Fifth Ward of the city contained about 10,000 population. There was neither flagman nor watchman kept at this point.
The plaintiff, J.L. Magee, and his father were riding in a wagon drawn by two horses going eastward along Girard Street and on their way home in the Fifth Ward. They arrived at the crossing over the railroad as the engine with the freight ears was approaching the said crossing. The servants of the railroad company negligently caused the locomotive to give out noises and steam to escape therefrom in an unusual and unnecessary manner, whereby the plaintiff's horses became frightened just as the team crossed the railroad track, and ran away. The employes of the railroad company saw that the horses were frightened and discovered that plaintiff and his father were in danger, yet failed to use the means at hand to stop the engine. In passing over the bridge across the bayou, the wagon in which the plaintiff and his father were riding collided with another wagon, which threw both of them upon the floor of the bridge, whereby the plaintiff received his injuries and the father was killed.
Upon a trial before a jury, there was a verdict for the plaintiff and judgment was entered which was affirmed by the Court of Civil Appeals.
The first error assigned in this court is, in effect, that the District Court in giving to the jury the following charge:
"You are further instructed that it was the duty of the defendant when starting its engine towards the crossing in question (the evidence showing that such starting point was within 150 feet of the crossing) to cause the bell on the engine to be rung after starting his engine, and to keep said bell ringing until the crossing should have been passed or the engine stopped, and the failure to do this on part of the employes of the defendant would be negligence."
The writ of error was granted in this case because it was believed that the court committed error in giving to the jury the foregoing charge, the plaintiff himself having testified that he saw the locomotive *Page 620 before it began to move, because, having notice of the movements of the engine, the failure to ring the bell or blow the whistle was not the proximate cause of plaintiff's injury, but upon careful examination of the evidence, we are of the opinion that the issue was properly submitted to the jury, notwithstanding the evidence of the plaintiff. The employes of the railroad company who were upon the locomotive at the time testified that it was in motion before plaintiff reached the railroad track, and we think that the men who were handling the locomotive had better opportunity to know when it was in motion than the plaintiff, who was observing it from a distance. It was properly left to the jury to say which was correct.
The plaintiff in error insists that the law which requires the bell to be rung or the whistle blown upon the approach to a public highway by a locomotive does not apply to the case of teams becoming frightened, but only to cases of collision with a train. The contention is unsound; the diligence prescribed by the statute is intended not only to prevent collisions between persons traveling upon the public highway and the railroad trains, but also to give notice to those who are approaching such crossing that they may not approach so near as to be unable to extricate themselves from danger. Railway v. Lowry,61 Tex. 149; Railway v. Bailey, 83 Tex. 25 [83 Tex. 25]; Railway v. Chapman, 57 Tex. 75.
The court charged the jury, in effect, that if a person of ordinary prudence would, under all the circumstances, have kept a flagman or watchman at the crossing where the plaintiff was injured, then the failure on the part of the railroad company to keep such flagman or watchman was negligence. It is objected to this charge that the law does not require a railroad company to keep a watchman or flagman at crossings on public highways, and that if the train itself is properly managed there can be no liability on the part of the railroad company; that it is not required to provide a person to notify travelers upon the public highway of the approach of its trains. There is a conflict of authority upon this question, but the weight of authority and sound reasoning sustains the charge given by the court. Railway v. Ives, 144 U.S. 408; Bolinger v. Railway,36 Minn. 418, 1 Am. St. Rep., 680; Eaton v. Railway,129 Mass. 364; Railway v. Richardson, 25 Kan. 391; Railway v. West,32 N.J.L. 91; Railway v. Matthews, 36 N.J.L. 533; 2 Wood's Ry. Law, 1330; Bilbee v. Railway, 18 C. B. N. S., 584; Cliff v. Railway, 5 L. R. Q. B., 263. The facts of this case show that the crossing at which the injury occurred was in a populous city, on one of the principal streets, and at a point so near to a bridge crossing the bayou as to render it more than usually hazardous. The evidence justified the court in submitting to the jury the question whether the circumstances were such as to require from the railroad company the precaution to provide some person to notify travelers of the approach of trains; the charge is in harmony with the general principles which govern the liability and prescribe the duties of railroad companies. Such charge would not be applicable *Page 621 to a state of facts which did not show extra danger in operating trains at that point. In the case of Railway v. Matthews, 36 New Jersey Law, 534, this question was under discussion and the court said: "In this narrow aspect, the rule laid down was this: that if that particular place was so peculiarly dangerous that prudent persons could not use the public road in safety, unless the company employed a flagman or other extraordinary means to signal the approach of their trains, that then, in such event, it was incumbent on them to employ such extraordinary means. And this proposition seems to me to be, in its application to the case then trying, in all respects correct." It is an extra precaution required alone to guard the public against extraordinary hazards.
The trial court charged the jury in substance that if the employes of the defendant saw the plaintiff and knew that he was in peril, or if, "by the use of ordinary diligence," they could have discovered his peril in time to prevent the injury and failed to use the means within their power to avert the danger, then the railroad company would be liable for the injury caused thereby. This rule of law applies only to those cases in which it is shown that such persons actually knew of the peril of the party injured and could have averted it by the use of all means in their power, and so much of the charge as directed the jury to find for the plaintiff if the employes, by the use of ordinary care, could have discovered the peril of the plaintiff, etc., was error. Railway v. Breadow, 90 Tex. 26 [90 Tex. 26]. The error, however, is harmless, because the fact is undisputed that the employes upon the engine did discover the plaintiff and knew that he was in peril. There was no issue as to whether or not they might have discovered him by ordinary diligence. It was a disputed fact whether, after discovering the peril of the plaintiff, the employes used proper diligence to stop the train.
The plaintiff in error assigns many other grounds of objection to the charge of the court, but none of them are sound. We find no reversible error in the proceedings of the court below, and the judgments of the District Court and Court of Civil Appeals are affirmed.
Affirmed.