American Casualty & Life Co. v. McCracken

• Decision Date: 25 June 1943
• Docket Number: No. 2385.,2385.
• Parties: AMERICAN CASUALTY & LIFE CO. v. McCRACKEN.
• Court: Texas Court of Appeals

173 S.W.2d 212

AMERICAN CASUALTY & LIFE CO. v. McCRACKEN.

No. 2385.

Court of Civil Appeals of Texas. Eastland.

June 25, 1943.

Rehearing Denied July 16, 1943.

Appeal from District Court, Palo Pinto County; Ernest Belcher, Judge.

Suit by Dr. Joseph H. McCracken against the American Casualty & Life Company to recover on a policy providing for payments for injuries sustained through accidental means. From a judgment for plaintiff, defendant appeals.

Affirmed.

Francis M. Chaney, of Dallas, for appellant.

Bouldin & Bouldin, of Mineral Wells, for appellee.

GRISSOM, Justice.

On the night of January 13, 1942, Dr. McCracken was driving his automobile from Fort Worth to his home in Mineral Wells. About three miles from Mineral Wells he drove around a curve and upon a railroad track which intersected the highway and either ran into or was struck by a switch engine. Dr. McCracken was wholly disabled and prevented from attending to any kind of work for more than five months. The court found that the collision occurred about 8:30 on a dark night; that the engine with which Dr. McCracken's automobile collided was black and indistinguishable in the darkness under the conditions that existed; that the engine's whistle was not blown nor its bell rung and that no signal was given to indicate to travelers on the highway that the engine was either approaching or upon the intersection; that in driving upon the intersection Dr. McCracken did not intend nor expect to either hit or be hit by the engine; that the collision was caused by the negligence of the operators of the switch engine in failing to give some warning that the engine was approaching or was upon the intersection. At the time of the collision Dr. McCracken carried an insurance policy with defendant, providing for the payment of $200 a month "if the insured in consequence of bodily injuries sustained through external violent and accidental means, independently and exclusive of disease and all other causes, shall from date of accident be wholly and continuously disabled * * *." As a result of the collision Dr. McCracken was rendered immediately unconscious and did not know whether he ran into the engine or the engine struck him. This suit was based on said facts and said policy provision. The Court found that Dr. McCracken sustained through external violent and accidental means, independently of disease and all other causes, serious bodily injuries that continuously and wholly disabled him for more than five months. The trial was to the Court. Judgment was rendered for plaintiff for $1,000. Defendant has appealed.

Defendant presents three points, as follows: That the court erred in rendering judgment for plaintiff (1) because there was no evidence that plaintiff's injuries were caused by accidental means, for the reason that the cause of the injury was the intentional act of Dr. McCracken in driving his automobile across a known railroad track without first determining whether a train was on the track; (2) because the undisputed evidence shows that Dr. McCracken's injuries were caused by driving his automobile into a standing railroad engine, which engine was not in an unusual or unexpected place, and the collision was to be expected; and (3) because the undisputed evidence shows that Dr. McCracken's defective hearing was the cause, or a contributing cause, of his injury.

The evidence shows and the Court found in substance that Dr. McCracken was driving his automobile along the highway on his right hand side at about 20 miles per hour; that he knew there was a railway...