Anderson v. Texas & New Orleans R. Co., 2384.

• Decision Date: 21 October 1933
• Docket Number: No. 2384.,2384.
• Citation: 63 S.W.2d 1079
• Parties: ANDERSON v. TEXAS & NEW ORLEANS R. CO.
• Court: Texas Court of Appeals

Page 1079

63 S.W.2d 1079

ANDERSON v. TEXAS & NEW ORLEANS R. CO.

No. 2384.

Court of Civil Appeals of Texas. Beaumont.

October 21, 1933.

Rehearing Denied November 1, 1933.

Appeal from District Court, Shelby County; T. O. Davis, Judge.

Suit by Mrs. Maud Anderson against the Texas & New Orleans Railroad Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

Long & Strong, of Carthage, and Anderson & Lewis, of Center, for appellant.

W. I. Davis, of Center, and Roy L. Arterbury, of Houston, for appellee.

WALKER, Chief Justice.

On the 31st day of October, 1931, Otis Anderson was killed in a railroad crossing accident at Keatchie, La., in a collision between his truck, driven by his servant and in which he was riding, and one of appellee's passenger trains. This suit was filed in district court, Shelby county, Tex., by appellant, Mrs. Maud Anderson, the mother of Otis Anderson, against appellee, Texas & New Orleans Railroad Company, for damages resulting from his death. Her petition stated a good cause of action upon certain specific acts of actionable negligence which the jury found in her favor, and assessed the damages accruing to her from the death of her son at $8,000. The issue of discovered peril duly pleaded by appellant was found against her by the jury. Certain specific acts of contributory negligence pleaded by appellee against Otis Anderson, in answer to appellant's petition, were found by the jury in its favor. On the verdict, judgment was entered by the trial court against appellant and in favor of appellee that it go hence without day.

All assignments of error and propositions complaining of the refusal of the court to submit certain specific acts of negligence against appellee and of the admission of certain testimony in support of its defense that it was not guilty of actionable negligence are overruled. The verdict of the jury upon the issues submitted and found in appellant's favor were sufficient to support a judgment in her favor, but for the findings on the issue of contributory negligence. The issues thus found in appellant's favor and the testimony admitted by the court in relation thereto affected in no way the issues of discovered peril and contributory negligence and, therefore, if the court erred, as charged by these assignments, the errors were wholly immaterial.

Appellant's twenty-second, twenty-third, twenty-fourth, and twenty-fifth assignments of error, and propositions related thereto, were merely to the effect that the court erred in defining "negligence," "proximate cause," "new and independent cause," and the term "new" and the term "independent." No error of commission or omission is suggested either by these assignments or the related propositions. Under the rule announced by the Supreme Court in Isbell v. Lennox, 116 Tex. 522, 295 S. W. 920, these assignments and propositions cannot be considered.

Appellant erroneously insists that in submitting the issue of "discovered peril," the trial court should not only have submitted as was done, the actual knowledge of the operatives of the train of the perilous situation of Otis Anderson just prior to the collision, but also "what the operatives should have known in the exercise of ordinary care." Appellant has not correctly construed the law of discovered peril. The charge correctly submitted the issue. Texas & P. Railway Co. v. Breadow, 90 Tex. 26, 36 S. W. 410; Crews v. Schaff (Tex. Civ. App.) 250 S. W. 749.

The evidence was sufficient to convict Barton McCrary, the driver of the truck, of negligence in the following particulars which were submitted to the jury and found in appellee's favor: (a) In not looking to his left for an approaching train after he got within 160 feet of the railroad track; (b) in attempting to drive across the track ahead of the approaching train; (c) in failing to exercise ordinary care for...