Appellee, while walking along the track of a railroad in the city of Houston, upon which the appellant ran its trains, had his foot caught between the rails of the switch and run over by a train of the company. The accident resulted in the loss of his foot. He was but a boy at the time of injury, and brought suit by his father as his next friend, and obtained a verdict and judgment against the appellant for two thousand dollars.
The depositions of three witnesses residing in Davenport, Iowa, were taken on behalf of plaintiff, who testified that a certain device consisting of a block of wood fastened between the rails at the frogs of the switches was in use upon certain *129railroads in the northwest, and had been so used for four or five years; that it prevented the danger to persons employed upon or walking over the track of catching a foot in the switch; and that without some similar contrivance the switches were not safe. To the reading of this testimony the defandant objected, but the objection was overruled by the court. The objections were in substance that the answers of the witnesses showed only that the appliance had been used upon a few railroads in a distant part of the country, and was not competent to prove that its use was so long and so generally established as to make it the duty of the defendant company to adopt and use it upon its road in Texas. We do not think the objection well taken. It is true that it is not the duty of a railroad company to discard reasonably safe machinery and to adopt a new device for the safety of its employes until, by its general continued use or otherwise, its superiority has been established. The evidence in this case shows that the frog of the switch, without some guard of this character, was dangerous to brakemen, and though to a lesser degree, also to pedestrians passing over the track.
The testimony objected to tended very strongly to prove not only that an unblocked switch was unsafe, but also that there was a simple, cheap and effectual device by which danger of accidents from this source might be avoided. It also appeared from other evidence in the case that at the place where the accident occurred there were no sidewalks, and that the street was practically taken up with railroad tracks. The public had the right to use the street to pass over it, either on foot or with vehicles, notwithstanding the right of way granted to the railroad company. (Baltimore, etc., Railroad Company v. Fitzpatrick, 35 Md., 32.) There being evidence calculated to prove that the switches were dangerous to persons who had the right to pass along or over the street, the testimony under consideration was admissible, as tending to show that there was a simple appliance which would have remedied the defect. We therefore think the court did not err in admitting it.
During the progress of the trial the counsel for the defendant asked the court to give the following instruction: “The jury are instructed that railroad corporations are not required to discard their machinery and appliances for operating their trains in order to introduce new inventions, which are supposed *130to be improvements on the old appliances in use, but which are .not in general use; and you are further charged that railroad companies are not, any more than individals, bound to use the highest degree of care to avoid injuring one who may possibly trespass upon its property, but as to such persons are only required ‘to use ordinary care.’” This was refused by the court and its refusal is assigned as error. But in our opinion the assignment is not well taken. We think that both the propositions contained in the charge was calculated to mislead the jury. The evidence did not present a question of the propriety of discarding the old machinery for new, but of the propriety and practicability of providing against a known danger by the addition of a simple device to appliances already in use. The first proposition may have led the jury to conclude that in the opinion of tire court there was something to be discarded and was not applicable to the evidence and therefore improper. The second proposition in the instruction was calculated to induce the jury to consider the plantiff as a trespasser upon the track of the company. He had the right to pass along the street, especially in a case like this where there was no sidewalk, although the streets were occupied by the railroad track, and although it was his duty to get out of the way of a passing train; and therefore he was not in any sense a trespasser. The charge being calculated to mislead the jury, it was not error to refuse it.
What we have already said is sufficient to dispose of the fourth assignment of error. It complains of the refusal of the court to give a special charge, which would have directly instructed the jury, that if plaintiff went upon the track of the railroad he was a trespasser, and that the company was under no obligation to construct its track with reference to the safety of such trespassers. Such an instruction as applicable to the case made, was clearly erroneous and was properly refused.
Appellant’s fifth assignment is, that the court erred in charging the jury as follows: “That the primary purpose and design of a public street in a city is for vehicles and persons to pass over and travel upon, and the use of such street for railroad tracks and trains thereon, when permitted, is to a certain .extent, and in a limited sense, subservient to the original design of such streets for travel over and upon them. In this case it is admitted that defendant company had the right to use the track, and that the Texas &New Orleans Railway Company *131owned the track, and has the right to use the street at the place where the accident occurred. A railroad company using a public street in a city for its track and trains thereon, should use all the care and precaution that it reasonably could and should to prevent accidents to any and all persons using such streets, and the nature and extent of danger from neglect should be taken into account by the jury in arriving to a proper conclusion as to whether or not the facts in evidence shows such neglect of duty on defendant’s part.”
The first objection to this instruction is that it does not define what the court means by the words “to a certain extent and in a limited sense.” But we think no such definition necessary. There is nothing in this, when considered in the light of the whole charge, to lead the jury to infer that the company did not have the right to run their trains over the track at all times. They may have inferred that this right was limited by the duty of exercising reasonable care in keeping in order their track and operating their trains so as to prevent injuries to persons who also had the right to use the streets in passing from one point in the city to another. The charge intimates no other limitation upon the right of the defendant company to the use of its track along the street, and the jury could not have been misled into supposing that any other was meant. The further ground of objection to this charge is that it did not properly state the law as to the degree of care required of the ■defendant company. The instruction in effect tells the jury that the defendant was bound to exercise reasonable care to prevent danger to persons lawfully using the streets. In a leading case this language in used: “It is correctly said that, generally, between persons standing in no particular relation to each o'her, that alone is reasonable care, which, in the judgment of men in general, is proportioned to the probability of injury to others, and consequently, he who does what is more than ordinarily dangerous is bound to use more than ordinary ■care.” (Morgan v. Cox, 29 Mo., 232.) This defendant in this case was bound to use a degree of caution corresponding to the danger of operating its trains over the street of a city, where, by reason of the absence of sidewalks, persons might be expected to walk along and across the tracks. This was reasonable care, and therefore the charge was not erroneous
Another portion of the charge is also complained of in the sixth assignment of error. The court there uses this language: *132"if you find that either the owner of the track or trains using it, in the exercise of care, prudence and foresight, should have' had the track protected so as to avoid danger therefrom,” and it is contended that by the use of the word "foresight” the court imposed upon the defendant a degree of care much greater than the law requires. But we think, in the connection in which it was used, the term was synonymous with "prudence,” and added nothing to the meaning of that word. The word "foresight” might very properly have been omitted, but we do not see that the jury could have been misled by its use.
Opinion delivered February 28, 1888.Neither do we find any error in that part of the charge set out in appellant’s seventh assignment. It instructs the jury, in effect, to find for the defendant if the track yras safe, and if the engineer was not negligent in failing to ring his bell or to blow the whistle, or in failing to keep a proper lookout, and if after discovering plaintiff upon the track, he did everything in his power to stop the train. This was correct. If there was a failure on the part of the company or its engineer in either particular so mentioned, and this failure was the cause of the injury, then the verdict should have been for the plaintiff. In another portion of the charge the jury were told that plaintiff could not recover if by his own negligence he contributed to the injury. This disposes of the assignments presented in the appellant’s brief, and we find no error in the rulings or charge of the court. The judgment is therefore affirmed.
Affirmed.