I dissent from the order of the majority of this court in ordering a reversal of the judgment of the trial court, such order being based solely upon a holding that the evidence raised the issue of discovered peril and therefore the court erred in refusing to submit such issue to the jury upon appellant's request therefor.
The appellant, and he only, testified that as he was attempting to board the train and was on the steps of the coach an employee (the conductor) of appellee let the platform at the door down on his foot and closed the door in his face, thereby knocking him from the train.
Upon the overwhelming weight of the evidence the jury found that the door of the coach at the point and at the time appellant attempted to re-enter the train was closed, and the evidence of every witness who claimed to have seen appellant try to enter the coach, except appellant himself, shows that appellant was not knocked from the train by the closing of the door in his face, as all of them testified that he was standing on the steps of the coach and holding to the hand bars at the entrance of the coach for quite a distance before he fell from the train. One or more of them testified that they knew the door, where he was holding to the hand bars with his foot on the steps, was closed.
The seeming intimation in the majority opinion, in view of the evidence and the finding of the jury, that the testimony of appellant that he was knocked from the train by the closing of the door in his face raised the issue of discovered peril, is, to my mind, preposterous. The only evidence of all the witnesses who testified relative to the position of appellant while attempting to re-enter the train, except appellant's testimony, is to the effect that appellant was not knocked from the train by the closing of the door in his face, but that he was hanging onto the coach with his foot on the steps and holding onto the hand bars at the entrance, while the door was closed, for quite a distance. Wherefore, I shall confine my discussion, in undertaking to show that there was no evidence calling for or authorizing the submission of the issue of discovered peril, to the evidence relative to the position of appellant as he hung on to the train, the discovery of the servants of appellee operating such train that appellant was hanging to the train, if any, and the acts shown to have been done by such operatives after such discovery, if any, to avert injury to appellant.
Peter Taylor, called by appellant, the plaintiff in the trial court, testified:
"When I looked out of the window I saw him hanging on part of the white coach. I don't know what coach it was but he was hanging on, I couldn't say whether it was the white coach or not, it was behind me, any way he was hanging on."
Again: "There was no one in that coach that spoke of the injury to the man; they didn't know the man was hurt. I didn't know it myself."
Again: "When I first saw him he was somewhere back there hanging on. * * * The last time I saw him he was hanging on and then I couldn't see him on account of the curve. The train had gone but a little distance when it went around the curve. * * * When I first saw him hanging on there the train was moving and the train kept going."
James Berry, the conductor in charge of the train, testified:
"The first thing that I knew about this transaction that night some darkey hollered to me that somebody was hanging on the side of the train; I was in the middle section of the car by that time as we didn't have any passengers. Then the porter, somebody told him about it; he was working towards the front of the train, and I told the porter to run out and see and if he found anybody to let them in. By that time we had reached the curve at the Brewery there and the porter came and told me he hadn't found anyone and we proceeded on."
Again: "As the train was leaving Houston I heard no commotion about a negro man getting off of the train and my slamming the door in his face. I did not see anybody trying to get back on that train and I did not slam the door in anybody's face. I did not let the trap door down on anybody; that would be impossible because the door closes first and the trap is on the inside. No negro man said anything to me *Page 341 about anyone getting back on the train, leaving the train or anything else. * * * Before the train leaves it is not uncommon for people to come there and get on the train with other people and then leave when the train is fixing to leave; they do that most every night, it is a common occurrence both among white and colored people."
Again: "It would be my duty to stop the train for a passenger; there is times that you can open the door or trap and let passengers enter. We can open any of them and let a person in. I consider it perfectly safe for one to hang on a while because the grab irons are out of the way and so long as he holds on there wouldn't be any danger of his getting hurt, but it is a very unsafe practice and that is why we try to get them on and off as quick as we can. If necessary, I would stop the train for any passenger attempting to board the train who was holding on there. I didn't do it that night because I didn't see the man. It was reported to me that night and the porter got to the door as quick as he could and the man was gone. That was the center door, the door to the white compartment and he went to that door because he was beyond the door and got to the closest door then, and then if he had seen the man hanging on he probably would have stopped, if necessary. Any member of the crew determines when it is necessary, they have experience enough to know that. I went to thefirst opening to see if I could see him. I did not only send one to openthe door; there are two of them, the one in the rear of the first classcar and the one in front of it."
Again: "We would stop to get a passenger on our road if we saw him hanging on the side of the train we would certainly admit him and would stop the train if necessary to do so. It is against the rules as well as the law for them to board a moving train, and we stop if there is any danger of a man getting hurt. We did not stop on this occasion because the man was gone. I would have stopped the train if I had found him hanging on if I thought it was unsafe."
Charley Cone, porter on the train, testified that as soon as he heard that some one was swinging onto the train he and the brakeman went to see if any one was swinging to the train, but they saw no one; that he had not seen anybody hanging onto the train that night.
W. C. Matthews, brakeman of the train, testified that he got on the rear end of the train after it began to move, and that after the train had gotten to Sixth street a man told him that some one was hanging onto the coach, and that he immediately went to see if there was any one hanging to the coach, and after an investigation he saw no one hanging to the train.
On cross-examination he testified:
"I have authority to stop a train after it has gone into motion in time of peril or danger. I did not stop the train on this occasion; I went to investigate it and nobody was hanging on there. It was reported to me by one of the expressmen, I suppose, someone hollered that there was someone on the side and that is the reason I went and investigated, and if he had been on I would have stopped the train and let him get on. I knew at the time that all of the compartment doors should have been closed and knew that one could not get into the train unless we would open the door. * * * I boarded the train while it was moving and got on at the last opening. At the time I reached the last opening the train was running about five miles an hour and any able-bodied man could have boarded the train without unnecessary danger to himself. That was the last opening on that train that any person could have gotten on. I did not learn as soon as I got on the steps of the train that a man was hanging on. I had gone a short distance when someone from the ground hollered to me that a man was hanging on the train. I did not report that to the conductor, that wasn't necessary; I went back and investigated and there was nobody hanging on; I went on until I could see plumb to the engine and nobody was hanging on. I did not report it to the conductor, nor did I stop the train, and if anybody had been hanging on there I would have had the authority to stop the train."
Ben Howard, for defendant, testified that he saw appellant swinging onto the side of the train with his foot on the steps and holding with both hands; that when he saw him the train was running slow; that he continued to swing on for some time.
J. C. Tanner testified that he saw appellant swinging onto the train; that the door in front of where appellant was standing on the steps was closed; that there was a curve in the railroad near the starting point of the train; that appellant fell off just at the beginning of the curve; that when he fell he was two car lengths below Sixth street, east of Sixth street, and at that time he was hanging to the colored coach, he was about two car lengths from where he started.
There is no evidence to justify the statement in the majority opinion that Sixth street, near which appellant fell from the train, wasapparently more than two blocks from where appellant got on the train; but to the contrary, there is evidence tending to show that Sixth street was situated less than one block from where the train started, at the time in question.
There was also no warrant for the statement in the majority opinion that none of the operatives of the train "made any effort to use either one of the two concededly sufficient means that were then at hand for averting *Page 342 the injury — stopping the train, or opening the door."
The undisputed evidence is that as soon as the operatives of the train were told that a man was seen hanging onto the train, the conductor immediately went to the first opening and looked along the outside of the train, and that at that time no one was hanging on to the train; that the conductor also told the porter to go to the doors and if any one was trying to enter to open the door and let him in; that both the porter and the brakeman did go to the doors of the coaches to see if any one was at such doors; and that they found no person at either of the doors.
To sustain their holding, the majority of the court must take the position that it was the duty of the train operatives, as soon as they heard that some one was hanging onto the train, to stop the train; of course, by signaling the engineer to stop it.
As already stated, the undisputed evidence shows that the train conductor in the present case was suddenly notified by some one from the outside of his train that a man was hanging onto the train in such manner as placed him in a perilous position. While it is settled law that when those in charge of a railroad train discover a person in a perilous position by reason of the movements of such train, and it becomes apparent that such person could not or would not extricate himself from the dangerous situation, it becomes the duty of those in charge of such train to use the means at their hands to prevent injury to such person, but it is also well settled that to render a railroad company liable for injuries received by one seen in a perilous situation from the movement of its train, under the theory of discovered peril, it must appear that the agents of such railroad company in charge of such train failed under the circumstances confronting them to use such means at their command as in their best judgment would avoid the injury. The omission to use all of several means at their command, or in fact to use the most effective means of the several to avoid the injury, does not necessarily constitute a breach of duty for which the railroad company would be liable.
Under the facts of the present case the conductor in charge of the train was suddenly notified that a man was hanging on his train. His immediate and instant action to avert the injury was demanded. Under such circumstances he exercised his best judgment quickly, as the case demanded, and sought to use the most effective means at his command to avoid the injury. The choice of only one of such means did not constitute actionable negligence, though the means used did not in fact avert the injury complained of.
It was substantially held in Missouri, Kansas Texas Ry. Co. v. Trochta (Tex.Civ.App.) 181 S.W. 761, 764, and G., H. H. Ry. Co. v. Sloman (Tex.Civ.App.) 244 S.W. 268, 274, writ of error denied, that where an engineer of a train was obliged to choose instantly between several means at his command calculated to avert an accident after he had discovered the peril of another, the choice made of one of such means only did not convict him of negligence. I think the rule announced by these two decisions is applicable to the present case.
One situated as was the conductor in the present case should not be held to the same accountability as is a person afforded time to deliberate.
In Henson v. Ry. Co., 301 Mo. 415. 256 S.W. 771, 774, quoting from Grout v. Electric Ry. Co., 125 Mo. App. 552, 102 S.W. 1026, it is said:
"The humanitarian duty deals only with the actual facts of a present situation, and has no concern with the question of what might have been done under different conditions."
In Ry. Co. v. Trochta, supra, it is said:
"If the engineer did what to a prudent man would have seemed reasonable in order to save the life of the deceased, he being compelled to choose his line of action upon the instant and almost, as it were, by instinct, without time to reason as to the comparative safety of two methods open to him, we do not think that because the subsequent event may show that he made a mistake as to the most efficient method of avoiding the danger he was thereby guilty of negligence."
In Ry. Co. v. Sloman, supra, it is said:
"Appellee seemingly contends that, in the short space intervening between the notice of the danger of the deceased was passed from the fireman to the engineer, the engineer should have sounded the whistle, sanded the track, cut off the steam, and applied the air brakes. In the case of M., K. T. Ry. Co. v. Trochta (Tex.Civ.App.) 181 S.W. 761, the court held that where the engineer was obliged to choose instantly between attempting to stop the train or blow the whistle to warn the injured party who was approaching the railway track at a public crossing, choice of attempt to stop was not negligence."
The only fact proven which the majority can seriously contend raised the issue of discovered peril is that after some one had told the operatives of the train that a man was hanging onto the train they did not stop the train. Such contention is not tenable for two reasons; (1) Because the undisputed evidence shows that appellant had fallen from the train before such operatives were told that he was hanging to the train; and (2) because such operatives, when suddenly told of appellant's peril, acted promptly to avert the threatened danger, using their best judgment as to the means to be used to effect such end. *Page 343
The writer, believing that there was no evidence calling for or authorizing the submission of the issue of discovered peril, thinks that it would be a grave injustice to reverse the judgment of the trial court because such issue was not submitted.