Galveston, H. & S. A. Ry. Co. v. Lobit (132 S.W. 102, 1910)

JAMES, O. J.

(after stating the facts as above). In so far as concerns the question of appellee’s contributory negligence in going at too great a speed or in not checking or stopping his train in time to avert the collision, we find as a conclusion of fact, from ample evidence in the record, that he was not chargeable with negligence in those respects.

The other question is whether or not he was culpable, as a matter of law, in leaving the siding and proceeding on his way at the time and under the circumstances. We are of opinion that he was not

His orders required him to take the siding at Deepwater to await the passage of two sections of train 176. This he did. The orders in his hands identified the trains he was to wait for as the first and second sections of 176 drawn by engines 258 and 456, respectively. He had no knowledge of the change that had been made at Strang, adding another section, which was sent forward ahead of the two referred to in his orders as section No. 1, and which was made to prominently display itself a-s section 1 of train 176. By this proceeding defendant introduced a danger, unknown to appellee. Thus three' trains had to pass him before he could safely move out, instead of two, as stated in his orders. But for this the collision would not have happened.

Nevertheless, if, as appellant contends, appellee in leaving the siding when he did disobeyed the plain terms of his orders, we take it that it would have -been unnecessary for defendant to have given him other or special notice of the change mentioned, as defendant doubtless had the right to rely on his following the orders which he had. The question is: Did he violate his orders?

The following represents the situation as we understand it: He had orders to wait there for the first and second sections of 176. As he had been expected to meet those sections at Strang, he knew when he took the siding at Deepwater that they were immediately due to pass there. In a few minutes after stopping on the siding one passed, the engine number not distinguishable, but which showed from the cupola to be section 1 of 176, which it really was, haying been made so at Strang, although not the section 1 as originally intended in appellee’s orders. He knew, however, that this train did not have the engine number which corresponded with the engine mentioned in his order for section 1, being familiar with the whistle of that engine. But he took it for section 1 called for in his order, on account of what he saw on the cupola, and waited. In 10 or 15 minutes another train came by, and he recognized on this train, by its whistle, the engine 258 which his order connected with the first section that was to pass him. He then concluded that the two sections mentioned in his order had passed and proceeded out upon the main track. There was testimony toy experienced witnesses going to show that engineers would have understood the situation as appellee did in view of his orders and the circumstances, and would have gone forward on the main track just as he did.

There can be no doubt from the testimony that the circumstance that the first section that passed did not have on it the engine mentioned in the orders in connection with it, and the circumstance that the second section did have that particular engine, and that this fact was known to appellee before he moved out, was suggestive of some confusion or that something was wrong with, or that some change had taken place in the arrangement of the sections of, No. 176, or, on the other hand, that there was something wrong with appellee’s orders as to the engines. Two sections had passed, appellee had been on the alert, the first displayed itself as section 1 of 176, which answered his orders that far. It is true he might have stopped that train and examined the engine number, and he probably would have been required to do so if his order had so provided. But, as -it did not, appellant is certainly mistaken in contending that he violated a positive order in not going that far to satisfy himself that section No. 1 as described in his orders had or had not passed. There being no order which required him to know the engine numbers that passed him and to toe governed by that fact, his failure to stop the passing trains and ascertain the numbers when they were not discernible and his acting upon what the train announced itself to be would involve no more than a question of ordinary care on his part

He considered that the first section referred to in his orders hg¿ passed. Another section passed, and he knew this had the engine which did not belong to section 2, but to section 1, according to his orders. These, as already stated, were circumstances which suggested that there was something wrong about the arrangement of the sections of 176 or something wrong about the orders. But what did they suggest? Nothing definitely. They certainly did not advise him that another section had been added at Strang, and that new conditions, not embraced or contemplated in his orders, viz., the passing of three sections at Deep-water instead of two before he could safely go out, had been created. He had the right to assume that no change involving a new danger to him would toe created, and was not required to anticipate that defendant would introduce a new danger without providing for notice to him. Although he knew that the first section that passed did not have engine 258, and although he knew that the second section had. engine 258, which, according to his orders, should have been on section 1, and from this he may have known that some change had been made in the sections of 176, still he had the right to act upon the belief that these things involved no new risk or danger to him. They did not necessarily indicate danger, nor the fact that three sections had been made, and, there being nothing to notify him of the existence of such conditions except what might be inferred from said circumstances, it presented, at the utmost, nothing more than a question of fact for the jury whether or not from said circumstances a reasonably prudent person in his situation would have realized the danger involved in the moving out of the train, and taken the precaution to ascertain what, if anything, they meant.

For these reasons we conclude that there was no error in refusing the peremptory instruction, or in the overruling of the motion for new trial.

The rule: “In all cases of doubt, or uncertainty, the safe course must be taken, and no risks run” — does not affect the view above expressed.

The fourth and fifth assignments complain first of the refusal of a charge which would have told the jury that if it was plaintiff’s duty to wait at Deepwater until engines 258 and 456 with their trains had passed, and he did not do so, to find for defendant. This, from what has been said, was correctly refused. The second complaint is of the refusal of a charge which embodied like error. There was no rule, nor order, which required appellee to know the numbers of the passing engines, and it would have been error for the court to make such failure negligence as a matter of law.

The remaining assignment is that the verdict is excessive. The testimony concerning Ms injuries, in our opinion, does not indicate an excessive finding.

Judgment affirmed.