Baker v. Streater

• Decision Date: 07 April 1920
• Docket Number: (No. 6185.)
• Citation: 221 S.W. 1039
• Parties: BAKER v. STREATER.
• Court: Texas Court of Appeals

Page 1039

221 S.W. 1039

BAKER v. STREATER.

(No. 6185.)

Court of Civil Appeals of Texas. Austin.

April 7, 1920.

Rehearing Denied May 12, 1920.

Appeal from District Court, Robertson County; John Watson, Judge.

Action by W. C. Streater against James A. Baker, as receiver of the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

F. L. Henderson, of Bryan, and J. L. Goodman and H. A. Bush, both of Franklin, for appellant.

Perry & Woods, of Franklin, for appellee.

Findings of Fact.

BRADY, J.

Appellee sued appellant for damages for personal injuries, alleged to have been caused by the negligence of the operatives of a train of appellant. He alleged several grounds of negligence, two of which were submitted to the jury: (a) The failure of appellant to have a flagman or other employé at the crossing where the collision occurred, to warn persons, about to use the crossing, of the approach of a fast passenger train, known as the "Sunshine Special"; (b) the operation and running of the train at a rate of speed approximately 25 miles an hour in violation of the penal ordinances of the town of Franklin, which limited the rate of speed of any railroad train within the corporate limits to 10 miles an hour.

The case was submitted upon special issues, and the jury found that the passenger train was running at a greater rate of speed than 10 miles per hour at the time of the collision, and that this was a proximate cause of the injuries. The jury also found that appellant negligently failed to have a flagman or other employé stationed at the crossing, which was also a proximate cause of the injuries. The verdict of the jury fixed the damages of appellee at $8,000.

The court also submitted the issues of alleged contributory negligence on the part of appellee, intoxication at the time of the collision, and whether appellee and A. J. Hodges, who was driving the car at the time, were engaged in a joint enterprise. Each of these issues was answered in the negative.

The court defined contributory negligence, and specially submitted this issue in special charges requested by appellant.

At the request of appellant, the court also charged the jury that in passing on the question of damages they should not consider any element of damages except as the same was submitted by the court; that although the jury should believe from the evidence that the crossing was obstructed, the fact in itself would not justify or excuse the appellee from using ordinary care for his own safety; that in passing upon the damages the jury should determine, first, whether his damages were proximately caused or resulted from any negligence of appellant, and that in so doing the jury should determine whether acts or omissions on his part had further incapacitated him or prolonged the time of his recovery.

The court also, at appellant's request, asked the jury whether appellee was driving upon the street and approaching the crossing at a greater rate of speed than 8 miles an hour, and, if so, whether this was the proximate cause of his injuries. The answer was in the negative.

Finally, at request of appellant, this charge was given: That the duty of the public and the railroad company are reciprocal, as to the rights of each, by public necessity and convenience, and one approaching a railroad crossing must exercise proper precaution to avoid injury from passing trains; and, bearing in mind this instruction, the jury were asked the following question:

"Did the plaintiff upon approaching this crossing exercise that degree of care that an ordinarily prudent person would do in order to avoid injury from passing trains?"

The answer was in the affirmative.

Upon the verdict, judgment was rendered for appellee for the sum of $8,000, from which this appeal has resulted.

The material facts upon the issues involved are substantially as follows: At the time of the collision, appellee was a farmer and stockman, owning some 1,400 acres of land, 350 or 400 head of hogs, and some horses and mules. His time was occupied in looking after his cattle, buying and selling hogs and cattle, and looking after his farm, which comprised about 500 acres of land under cultivation. The accident occurred at the principal crossing in the town of Franklin, which had a population of about 1,500 inhabitants; and approximately one-third of the residence section of the town is located south of the railroad, from which direction the automobile in which appellee was riding approached appellant's tracks. There was also a large trade territory south of the crossing, and this crossing was used by the population of the town living on the south side, and by the people of the adjacent communities.

There was no evidence of any unusual noises in the neighborhood of the crossing, except that at the time of the accident the engine of the local train was spotting some cars on the house track; but the evidence shows that at the time of the accident a freight train of solid box cars had been cut at the crossing, which extended eastward into the crossing; and there were also cars left standing on the west side of the crossing. The width of the crossing was about 60 feet, but by reason of the placing of the box cars on either side, the space left by the cut in the freight train reduced the crossing to about 16 or 18 feet in width. These box cars were at or near the station, and the passenger train approached from the east. The evidence showed that the box cars and station obstructed the view of the approaching passenger train, which was not seen by appellee or the other occupants of the car until they had passed the box cars, and the train was then within 30 feet from them, running at a rate of speed from 20 to 35 miles an hour. The engineer and fireman, who were keeping a lookout, did not see the automobile until about the time it was hit. It had come out from behind the box cars before being seen by these operatives.

The conductor of the freight train testified that his train arrived in Franklin about 5:20 and the Sunshine Special at 5:35. He knew at the time and before the accident that the passenger train was expected to arrive, and took the passing track for the purpose of letting it pass. He knew that the train was due, but did not place anybody at the crossing to give warning to anybody who might cross there. He testified that they did not ordinarily do that under such circumstances, but that sometimes they did and sometimes not; that he knew this was what was called the main street crossing, and that the main line was located about 6 feet, from rail to rail, from the passing track on which the freight cars were standing.

The automobile belonged to Mr. Hodges, who was a neighbor of appellee, and who had agreed to carry the latter to Hearne the day of the accident. In the car was also a Mr. Sparks, when Hodges called for appellee at his place. The party stopped at New Baden, where Sparks and Hodges had some peanut business. Hodges and appellee went to Hearne to carry a coat back to some one, but had no other business there. On the trip these parties all had some drinks together, both beer and whisky. On the way from Hearne to Franklin they took a drink, and when they arrived at Franklin they went to a lumber office. Appellee and Sparks stopped at the lumber yard and bought some lumber, but each for his separate account. Hodges also figured with a man at the lumber yard for some lumber. When the parties left home, Sparks did not intend to go to Hearne, but accompanied the others at their request.

Upon the issue of appellee's having prolonged his injuries by failing to obey the instructions of his physicians, the evidence for appellee is to the effect that he did not disobey the instructions of the physicians who treated him. There is no positive evidence that he did disobey or fail to carry out the advice or instructions of his physicians, thus prolonging his injuries. There is some testimony that appellee was advised to use his leg more, and to massage it to further quick recovery, and showing the effect of inaction upon a broken leg. The accident occurred in November, 1917, and there was testimony that appellee was still using his crutches late in the summer of 1918, and this was claimed to retard his recovery.

Upon the question of the amount of damages, there was evidence to the effect: That both the tibia and fibula of appellee's leg were broken about 17 months before the trial. That for a short time after the accident he was rendered unconscious; was carried to the hospital on the following day, where his leg was set, placed in a fracture box, and kept in a fixed position with a 12-pound weight swinging to it continuously for 14 days, during which time appellee suffered constant pain. He remained in the hospital 24 days, and carried crutches for about 8 months after the injury, and at the time of the trial he still suffered pain. That after considerable use of his leg there would be inflammation and severe pain. That there had never been a perfect union of the broken bones, and that the injury might be permanent and incurable by surgical operation. Appellee was but 34 years old at the time of the accident, in good health and able to work at his usual occupation. His life expectancy at the time of the trial was nearly 32 years. There was evidence showing that his decreased earning capacity and loss of time to the date of the trial amounted alone to over $5,000. The testimony was conflicting as to whether the injuries were serious and permanent at the time of the trial, and as to whether an operation would cure.

Opinion.

The first assignment will not be considered, because the record does not show any action by the trial court upon the special exception involved in such assignment. The record...