Atchison v. Texas & P. Ry. Co.

• Decision Date: 14 March 1945
• Docket Number: No. A-390.,A-390.
• Citation: 186 S.W.2d 228
• Parties: ATCHISON v. TEXAS & P. RY. CO.
• Court: Texas Supreme Court

186 S.W.2d 228

ATCHISON v. TEXAS & P. RY. CO.

No. A-390.

Supreme Court of Texas.

March 14, 1945.

Rehearing Denied April 11, 1945.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Action by W. B. Atchison against the Texas & Pacific Railway Company for injuries sustained by plaintiff's wife in an automobile collision on a highway enveloped in smoke from a grass fire on defendant's right of way. A judgment for plaintiff was reversed and judgment rendered for defendant by the Court of Civil

Appeals, 183 S.W.2d 179, and plaintiff brings error.

Judgment of Court of Civil Appeals reversed, and that of trial court affirmed.

Scarborough, Yates & Scarborough, Edmund C. Yates, and J. R. Black, all of Abilene, for petitioner.

Shropshire & Bankhead, of Weatherford, and Donald L. Case, of Dallas, for respondent.

FOLLEY, Commissioner.

This suit was filed by the petitioner, W. B. Atchison, against the respondent, Texas & Pacific Railway Company, to recover damages for injuries sustained by petitioner's wife when the automobile in which she was riding collided with that of a third party upon a public highway adjacent to respondent's railroad while the highway was enveloped in dense smoke from a grass fire alleged to have been negligently started by respondent on its right of way and which spread to the surrounding area. The trial before the court without a jury resulted in a judgment for petitioner in the sum of $750. The Court of Civil Appeals reversed such judgment and rendered one for respondent. 183 S.W.2d 179.

The facts show that on the day of the collision a grass fire originated on the right of way of the railway company in Callahan County east of the town of Putnam immediately after the passing of one of respondent's trains. The fire spread over a large area, and the smoke therefrom drifted across the public highway running parallel with the railroad about the time petitioner's wife, Mrs. Atchison, was riding along the highway in an automobile driven by Mrs. Elva Smith. While Mrs. Smith was driving slowly through the smoke on her right-hand side of the road her automobile was struck by an automobile of a third party traveling in the opposite direction, which collision resulted in injuries both to Mrs. Atchison and Mrs. Smith.

The trial court filed findings of fact and conclusions of law to the effect that the railway company negligently permitted grass, weeds and other vegetation to grow up and remain on its right of way in a highly combustible state; that respondent negligently set fire to the grass and weeds on its right of way which spread and caused smoke to drift over the highway; that each of these acts of negligence was a proximate cause of the injuries; that Mrs. Smith was not guilty of negligence; that the driver of the automobile which struck Mrs. Smith's car was guilty of negligence, but that such negligence was not the sole proximate cause of the collision; that petitioner was damaged in the sum of $750; and that petitioner was entitled to recover.

The Court of Civil Appeals found that the burning of the grass under the circumstances merely brought about a condition which was neither the sole nor a concurring proximate cause of the collision; that the uncontroverted evidence showed that the injuries were occasioned by the conduct of a third party in no way connected with respondent and for whose conduct respondent was not responsible; and that the conduct of the third party was the sole proximate cause of the collision. The petitioner cites these holdings as error.

The general rule is that the owner or occupant of premises abutting a highway must exercise reasonable care not to jeopardize or endanger the safety of persons using the highway as a means of passage or travel, and the owner or occupant is liable for any injury that proximately results from his wrongful acts in this respect. Skelly Oil Co. v. Johnston, Tex.Civ. App., 151 S.W.2d 863 (writ refused).

The liability of an owner or occupant of private premises abutting on or near a highway for injury or damage resulting from an automobile collision on the highway allegedly occurring because the driver's vision was obscured by smoke negligently allowed to emanate from such premises has been the object of judicial determination in many jurisdictions. Pitcairn v. Whiteside, 109 Ind.App. 693, 34 N.E.2d 943; Farrer v. Southern R. Co., 45 Ga.App. 84, 163 S.E. 237; Keith v. Yazoo & M. V. R. Co., 168 Miss. 519, 151 So. 916; Southern Cotton Oil Co. v. Wallace, 27 Ga.App. 415, 108 S.E. 624; Oviatt v. Garretson, 205 Ark. 792, 171 S.W.2d 287; McCombs v. Southern R. Co., 39 Ga.App. 716, 148 S.E. 407; Ryan v. First Nat. Bank & Trust Co., 236 Wis. 226, 294 N.W. 832; Thompson v. Erisman, Tex.Civ.App., 157 S.W.2d 439, affirmed 140 Tex. 361, 167 S.W.2d 731; Anderson v. Byrd, 133 Neb. 483, 275 N.W. 825; Jacobs v. Atlantic Coast Line R. Co., 147 S.C. 184, 145 S.E. 146; Young v. Great Northern Ry. Co., 204 Minn. 122, 282 N.W. 691; Fisher v. Southern Pac. Co., 72 Cal.App. 649, 237 P. 787; Waggoner v. Simmons, Tex.Civ.App., 117 S.W.2d 553; 150 A.L.R. 371.

In only two of the cases above cited was the opinion expressed that the smoke was only a condition affording the occasion for the collision, and which could not constitute a proximate cause thereof. The first is the Nebraska case of Anderson v. Byrd, and the second is the Texas case of Waggoner v. Simmons, decided by the Fort Worth Court of Civil Appeals, which did not reach this court by application for writ of error. In all of the other cases cited the rule seems to prevail that whether the smoke was the proximate cause of the collision on the highway is a question for the jury's determination. As typical of the holdings in all of these authorities representing the majority rule, we review briefly a few of them.

In Pitcairn v. Whiteside, supra, the plaintiff was driving his automobile along a paved highway and, upon reaching a point where dense clouds of smoke from a fire on defendant railroad's right of way were rolling across the highway, proceeded through such smoke on his own side of the road at a rate of speed of from three to four miles per hour, and while thus proceeding through such smoke his automobile was struck by another automobile traveling in the same direction. It was held that since there was a violation of the railroad's duty to refrain from the creation or maintenance of any condition upon the right of way which subjected the traveling public in the vicinity to unreasonable risks or conditions that were unnecessarily dangerous, the evidence was sufficient to entitle the jury to determine whether or not the railroad was guilty of negligence.

In Farrer v. Southern R. Co., supra, the trial court sustained a demurrer to plaintiff's petition in an action against a railroad company for an injury sustained in a collision between two automobiles on a highway parallel with the railroad right of way occasioned by smoke from a fire started by one of the company's agents. The appellate court held that where one negligently sets fire to grass from which smoke envelopes the highway so as to blind two travelers along the road approaching each other in automobiles, he is liable in damages for the injuries which proximately result from such negligence, and that the petition alleging such facts is not subject to a demurrer.

In Keith v. Yazoo & M. R. Co., supra, the plaintiff was proceeding in a truck along a highway parallel to the right of way of the defendant railway company, and, upon discovering that he could not see ahead of him because of the density of smoke arising from a grass fire on the right of...