Acker v. Thompson

• Decision Date: 28 April 1939
• Docket Number: No. 13881.,13881.
• Citation: 128 S.W.2d 852
• Parties: ACKER et al. v. THOMPSON et al.
• Court: Texas Court of Appeals

128 S.W.2d 852

ACKER et al. v. THOMPSON et al.

No. 13881.

Court of Civil Appeals of Texas. Fort Worth.

April 28, 1939.

Rehearing Denied May 26, 1939.

Appeal from District Court, Cherokee County; C. E. Brazil, Judge.

Suit by C. D. Acker, guardian, and others, against G. A. Thompson, trustee, and others, for death of Mrs. J. C. Gourley, resulting when automobile in which she was guest was struck by train. From judgment for defendants upon special findings of jury, plaintiffs appeal.

Reversed and cause remanded.

H. T. Brown and Norman, Stone & Norman, all of Jacksonville, and Smithdeal, Shook & Lefkowitz, of Dallas, for appellants.

Andrews, Kelley, Kurth & Campbell, Sewell, Taylor, Morris & Connally, and W. J. Knight, all of Houston, for appellees.

SPEER, Justice.

This suit grows out of a collision between a railway train and an automobile, at Troup, in Cherokee County, Texas.

C. D. Acker, as guardian of certain named minors, who were children of the victims of the accident, and as administrator of the estate of Mrs. J. C. Gourley, deceased, joined by others, sued International-Great Northern Railroad Company, a corporation, and Guy A. Thompson, its trustee, in a district court of Cherokee County, Texas, to recover damages for the death of Mrs. J. C. Gourley, alleged to have been the result of the negligence of defendants, resulting in the death of both J. C. Gourley and his wife, and their infant child, on February 16th, 1936.

The petition charged defendants with many acts of negligence. The verdict convicted them of negligence in, (a) failure to keep that part of the public road across the right-of-way in a reasonably safe condition for travel; (b) operating the train upon this occasion at an excessive rate of speed; (c) failure to keep a proper lookout; and (d) failure to ring the bell on the locomotive at least 80 rods before reaching the crossing. The verdict also established that each of these acts constituted negligence and were proximate causes of the death of Mrs. Gourley. The amount of damages was set at $15,000.

The jury, by its verdict, found that Mrs. Gourley was guilty of contributory negligence, which was a proximate cause of her death, in failing to discover the approaching train in time to have warned her husband, who was driving the automobile, to stop before going into the place of danger. The verdict was to the further effect that J. C. Gourley, the driver of the automobile, was guilty of contributory negligence proximately causing the collision, in (a) failing to exercise his sense of sight to discover the approaching train before attempting to cross the track; (b) failing to become aware of the approaching train before attempting to cross the tracks; and (c) failing to remain in a place of safety by the side of the track.

Upon the verdict rendered, the court entered judgment against plaintiffs, and they have perfected their appeal to the Texarkana Court of Civil Appeals, and by order of the Supreme Court, the case is before us for review. The parties will carry the same designation here as in the trial court.

The judgment for damages was denied plaintiffs because of the verdict of the jury that convicted the Gourleys of contributory negligence, which was a proximate cause of their deaths. Both the occupants of the automobile are dead, and the jury was compelled to take the evidence of a number of persons who saw the accident, from their respective points of view. It is a matter of common knowledge that railway trains are operated on the tracks prepared for that purpose, and that persons crossing such tracks are chargeable with knowledge of the dangers incident thereto, but it is equally true that railway companies know that the public is entitled to cross their tracks at public places, and that both they and the public cannot use such place at the same time. The railway company is no doubt as anxious that its employees do not injure anyone as the general public is solicitous that it be not done. It is but fair, also, to assume that persons situated as were the Gourleys would not wilfully and intentionally expose themselves to unnecessary dangers, but that they acted as any other reasonably prudent person would have acted, under such conditions. With this in view, it became necessary for the company, to escape liability after negligence is shown, to establish by competent testimony that the Gourleys contributed to their own deaths by their negligent acts.

It is easy, after an accident has happened, to see how it could have been avoided. But this is not the proper test. It must be viewed from the standpoint of a reasonably prudent person surrounded at the time, as were the participants in the collision. Here we have, upon one hand, the defendants operating their passenger train on their line at a speed of about 55 miles per hour, and approaching a highway crossing which, from some of the evidence the engineer cannot see until he is so close to it that he is unable to bring the train to a stop before reaching it, should the necessity arise. By the testimony of the engineer he could see the crossing a sufficient distance. The testimony shows it took approximately 1,200 feet in which to stop this train after it struck the automobile. Upon the other hand, we find persons using the highway passage across the tracks, with evident knowledge that a train may be approaching and yet not in their sight, which would reach the crossing within from ten to fifteen seconds.

Such a condition as described presents a very serious situation, both for the railway company and the public. The evidence shows there was a cold wind blowing from the north. Such wind would tend to keep the noise of the train and its signals from being heard to the northward, the place where the accident happened. The Gourleys are shown to have had their automobile closed, a natural thing to do, on a cold day, especially with the baby in the car. All these conditions are incidents which doubtless contributed to the fatal collision, yet they are such as both parties should have realized would render more probable the very thing that did happen. Thus placing upon each of the parties a greater responsibility than they would have had if these conditions had not existed.

The jury said Mrs. Gourley was guilty of negligence in failing to discover the approaching train in time to advise her husband of the danger, so that he would stop the car. As stated, the verdict further said that J. C. Gourley was negligent in failing to use his sense of sight to discover the approaching train, as well also that he was guilty of negligence in not remaining in a place of safety. Boiled down, two of the elements of negligence were because Mr. and Mrs. Gourley should have seen the train as it approached, and the next point is that, it being their duty to have seen the train coming, they should have remained in a safe place until it passed. These were contested points in the issues, and, as we have demonstrated, involved a very short period of time.

By the jury verdict, in response to special issue No. 22, it was found that Mrs. Gourley did not discover the train in time to warn her husband against the danger. By Issue No. 27 it was said that she did not fail to keep a lookout for the approaching train, and by Issue No. 31 the jury determined that she did not fail to listen for the train. Yet, to Issues 35 and 36, the jury answered that Mrs. Gourley negligently failed to discover the approaching train in time to warn her husband against driving into a place of danger, and that such negligence was a proximate cause of the injury and her death.

By their ninth proposition, based on appropriate assignments of error, plaintiffs claim the answers of the jury in the respects mentioned are contradictory and cannot form the basis for an ultimate finding of contributory negligence on the part of Mrs. Gourley. We think their contention is correct, and but for the further finding that her husband was negligent, proximately causing the injury, there would be reversible error in the answers referred to. But a reversal will not be based solely upon those answers.

The tenth proposition challenges the judgment of the court, based on a finding of contributory negligence of J. C. Gourley, because it is claimed that the answers of the jury are conflicting and self destroying. With this we do not agree. The issues and their answers relied upon are: No. 43, J. C. Gourley did not attempt to cross the track after he was aware of the approaching train. No. 78, the failure of J. C. Gourley to bring his automobile to a full stop before attempting to drive across the railway track was not negligence. No. 81, it was negligence for J. C. Gourley to fail to remain in a place of safety near the railway track, and by a subsequent issue, that said negligence was a proximate cause of the death of his wife. The answers mentioned are not inconsistent with each other when read in connection with Issue No. 51 and its answer. That question and answer found that J. C. Gourley failed to exercise his sense of sight to discover the approaching train before he attempted to cross. By subsequent answers this was found to be negligence and a proximate cause of the injuries. It was not inconsistent for the jury to answer that Gourley was negligent in not remaining in a safe place when, by the answer to Issue No. 51, they had said he had not exercised his sense of sight to ascertain if a train was approaching. In other words, the effect of the jury's answer to Issue 81 was that he should have remained in a place of safety until he had both listened and looked for an approaching train. It is not inconsistent to say that both of these things could be done without bringing the automobile to a full stop.

Plaintiffs' right of recovery was defeated because the driver of the car failed to "look" before attempting to cross the track, to ascertain if a train was coming. An anomalous situation...