It is well established in this state that he who seeks redress for the wrongful act of another must use due diligence to prevent loss or injury therefrom. Brandon v. Manufacturing Co., 51 Tex., 121. And where the plaintiff has, by his own want of proper care, contributed to the injury of which he complains, a recovery will be denied him. H. & T. C. R’y Co. v. Gorbett, 49 Tex., 573; R. R. Co. v. Randall, 50 Tex., 254; R. R. Co. v. Le Gierse, 51 Tex., 189, and many later cases.
It is also held in other states that if the plaintiff, in setting out his cause of action, shows that his own negligence has contributed materially to the injury of which he complains, his petition will be *376bad on demurrer, although the defendant also may have been guilty of negligence. Ream v. Pittsburg, etc., R. R. Co., 49 Ind., 93; 1 Thomp. on Reg., p. 449. In the case from Indiana “a demurrer was sustained to a petition on the ground of contributory negligence, which alleged that plaintiff’s intestate with others were riding for pleasure on a hand-car one thick, foggy night, which was ■run down by an extra freight train going at the rate of forty miles an hour, without a head-light burning, and giving no signals of its approach.” Thompson, supra.
The plaintiff thus “ makes the defense of contributivo negligence for the defendant in stating his own. case.” Chief Justice Roberts in T. & P. R. R. Co. v. Murphy, 46 Tex., 362.
The case before us presents strong proof of contributory negligence on the part of the plaintiff. The plaintiff had been a section hand on the road, and was perfectly familiar with all the modes of .its operation; yet upon a dark, rainy night, with a strong wind blowing in his face, he traveled upon the track between stations, knowing that the express train was coming behind him; that it was due, and might be upon him at any moment. The only specific allegation of negligence on the part of the defendant which he makes is that there was no head-light burning on the engine, and this allegation is not fully sustained by the evidence.
The court in the general charge treated the absence of' a headlight as an instance of gross negligence on the part of the defendant’s servants. This charge is perhaps objectionable under the rule laid down in T. & P. R. R. Co. v. Murphy, 46 Tex., 356, that the court could not declare, as a matter of law, that the omission of any act is negligence, unless that act is prescribed by some law.
But apart from' that consideration, was the failure to have a head-light burning (if such was the fact) gross negligence in that particular case, and as to the particular person who complains? The precise meaning of the word negligence must be determined by the facts of the particular case to which it is applied. An act which would be the extreme of negligence in one case would pass unblamed and even unnoticed in another. A man in an unoccupied country, where no one was near, might safely throw down heavy timbers from a house-top, without warning, simply because no one would probably be hurt; but the same act, done in a crowded city, where people are constantly passing, would be an act of even criminal negligence, though he .should give loud warning. 4 Black. Com. So what would be gross negligence as to one party might furnish no ground of complaint to another. If poisonous food were placed *377upon the table, the guest might institute a very rigid inquiry as to-carefulness of the housekeeper; but if a burglar should break into-the house, and carry away' a piece of meat, he would hardly be heard to complain that ratsbane had been carelessly spread upon it.
Mr. Justice Cooley presents these considerations with great force and clearness in his work on Torts, p. 660. “A duty may be general, and owing to everybody, or it may be particular, and owing to a single person only, by reason of his peculiar position. . . . The general duty of a railroad company to run its trains with care becomes a particular duty to no one until he is in a position to have a right to complain of the neglect; the tramp who steals a ride cannot insist that it is a duty to him;” neither can he who makes a highway of the railroad track, and is injured by the train.
These views have been adopted, to a considerable extent at least,, by the courts of this state. H. & T. C. R. R. Co. v. Clemmons, 55 Tex., 88. See, also, 52 Tex., 178. In that case there was some evidence of negligence on the part of the managers of the train; but the plaintiff was out of his proper place, and would not have been hurt had he been in his place. The court held that he could not. recover.
In the case of H. & T. C. R. R. v. Sympkins are to be found some general remarks by the learned chief justice who delivered the opinion, which may at first glance seem inconsistent with the views expressed above, but the case itself, as actually decided, does not vary the rule as previously established in this state. The chief justice refers to a number of cases (and more might be easily cited) in which parties have been technically trespassers upon the railway track, and yet under the circumstances could not be said to be guilty of contributory negligence.
In deciding such cases the judges have sometimes let fall remarks which, unless read with reference to the particular facts before the court, might perhaps mislead. In the case before us the injury did not occur at a station or crossing, where persons are likely to be found on or near the track, but at a place where the plaintiff had no right to be, and where there was no reason to expect that he would be. There is .not the slightest evidence in the record that the defendant’s servants were aware of the plaintiff’s presence on the track, nor, under the circumstances, is it by any means certain that ordinary care on their part would have protected him against the consequences of his own rashness.
In the case of McLaren v. Indianapolis, etc., R. R. Co., 8 Am. & Eng. R. R. Cases, pt. 1, p. 217, it was held that between stations *378■and public crossings a railroad track belongs exclusively to the railroad company; that persons who walk, ride or drive thereon are trespassing; and they do so subject to the risks incident to so hazardous an undertaking, and, if injured by a train of the company, there is no liability unless the injury be wilful.
In a similar case in Illinois it was held that the plaintiff having himself contributed to the injury by negligence on his part, by placing himself in a situation of danger, “if the question arises as to the measure of care it was the duty of the defendant to have observed, in case it was in his power to have avoided the consequences of the plaintiff’s negligence, then, in order to charge the defendant, it must be shown that he had knowledge of the peril in which the plaintiff had placed himself, or the equivalent of such knowledge, at least long enough before the injury inflicted, to have enabled him to form an intolligens opinion as to how the injury mignt be avoided, and to apply the remedy.” 103 Ill., 512; 8 Am. & Eng. R. R. Cases, pt. 2, p. 225.
Our opinion is that the verdict is not sustained by the evidence, and that the court erred in refusing a new trial, and that the judgment should be rexersed and the cause remanded.
Beversed and remanded.
[Opinion approved May 1, 1883.]