Beatty v. Thompson, 11359.

• Decision Date: 24 November 1943
• Docket Number: No. 11359.,11359.
• Citation: 176 S.W.2d 795
• Parties: BEATTY et al. v. THOMPSON.
• Court: Texas Court of Appeals

Page 795

176 S.W.2d 795

BEATTY et al. v. THOMPSON.

No. 11359.

Court of Civil Appeals of Texas. San Antonio.

November 24, 1943.

Rehearing Denied January 5, 1944.

Appeal from 92nd District Court, Hidalgo County; Bryce Ferguson, Judge.

Suit for the death of her husband by Mrs. Mary Beatty and others against Guy A. Thompson, trustee of the St. Louis, Brownsville & Mexico Railway Company. From a judgment for defendant notwithstanding a verdict for plaintiffs, plaintiffs appeal.

Affirmed.

Sawnie B. Smith, of Edinburg, for appellants.

Strickland, Ewers & Wilkins, of Mission, for appellee.

MURRAY, Justice.

This suit was instituted by Mrs. Mary Beatty and her children against Guy A. Thompson, trustee of the St. Louis, Brownsville and Mexico Railway Company, to recover damages for injuries to her husband, Joseph H. Beatty, resulting in his death. In the petition it was alleged that the said children had, and thereby, transferred all their claims and causes of action in the premises to their mother. Joseph H. Beatty was killed at a grade crossing on the railroad as a result of a collision between a freight train and his automobile.

The case was tried to a jury; at the close of plaintiff's evidence she announced in open court that she did not seek any issue on original or primary negligence of the defendant or his agents, or operatives of the train, but on the evidence adduced would rely solely upon the theory of discovered peril.

The court then submitted the case to the jury upon the following five issues, which were answered by the jury as indicated, to-wit:

Question No. 1

Do you find from a preponderance of the evidence that before the collision occurred in which the deceased, Joseph H. Beatty, was injured, one or more persons operating defendant's train discovered (a) that said Beatty was in a perilous situation and (b) that said Beatty probably would not extricate himself therefrom in time to avoid injury? Answer "yes" or "no" as to both (a) and (b) separately.

(a) We, the jury, answer yes. (b) We, the jury, answer yes.

If you answered the foregoing questions "yes" then you will answer the following question No. 2, otherwise you need not answer the following question No. 2.

Question No. 2

Do you find from a preponderance of the evidence that such member or members of said train crew after making the discoveries inquired about in the foregoing question, if any such you have found was made, could have avoided the injuries to Joseph H. Beatty, deceased, by the use of all means at hand consistent with the safety of said train and crew? Answer "yes" or "no."

We, the jury, answer yes.

If you answered the foregoing question "yes", then you will answer the following question No. 3, otherwise you need not answer question No. 3.

Question No. 3

Do you find from a preponderance of the evidence that such member or members of defendant's train crew after making such discoveries, if any, failed to use all such means, if any, to avoid injury to Joseph H. Beatty? Answer "yes" or "no."

We, the jury, answer yes.

If you have answered the foregoing question "yes," then you will answer the following question No. 4, otherwise you need not answer question No. 4.

Question No. 4

Do you find from a preponderance of the evidence that such failure, if any, to use such means to avoid injury as inquired about in the foregoing question was a proximate cause, as that term is hereinbefore defined, of the injuries received by said Joseph H. Beatty on the occasion in question? Answer "yes" or "no."

We, the jury, answer yes.

If you answered the foregoing question "yes" then you will answer the following question No. 5, otherwise you need not answer the following question No. 5.

Question No. 5

What amount of money, if now paid in cash, do you find from a preponderance of the evidence would reasonably compensate the plaintiff, Mrs. Mary Beatty, for the pecuniary value, if any, of advice and counsel, personal services, support or other thing of value, if any, which she would reasonably have received from her deceased husband Joseph Beatty had he lived? Express your answer in dollars and cents.

We, the jury, answer $6000.

The trial judge after receiving the above verdict of the jury granted defendant's motion and rendered judgment in defendant's favor non obstante veredicto.

From this judgment n. o. v. Mrs. Mary Beatty has prosecuted this appeal.

The appeal presents but one question, that is, were the jury findings supported by evidence?

The defendant's railroad runs through the City of McAllen in an easterly and westerly direction. Old Depot Road crosses the railroad at a right angle within said city. Late in the evening, but before dark, on December 3, 1942, Joseph H. Beatty's automobile stalled on the railroad track at this intersection and was struck by a freight train of some twenty-five cars coming from the west and proceeding in an easterly direction along said railroad track. Beatty died shortly after the collision from the injuries he received. None of the train crew testified at the trial; all the evidence offered as to the facts of the collision came from persons who happened to be near the crossing at the time and were disinterested bystanders.

Eleanor Saenz testified she was riding in an automobile on the main State Highway, which runs through McAllen parallel with the railroad and only a short distance south thereof. She saw Mr. Beatty's automobile standing on the railroad track at the intersection and saw the train approaching. She heard the whistle of the train blowing incessantly. She heard the brakes go on and heard the wheels grinding. She saw Beatty open the door of the car and attempt to escape but before he could get away the train struck the automobile and Beatty was seriously injured. She was questioned as to where the train was when she heard the brakes go on, as follows:

"Q. Where was the locomotive when you heard the brakes go on? A. I was on the corner of the road to turn home.

"Q. Where was the train? A. The train?

"Q. On this side where you saw it? A. On this side of the Cities Service where I said that the switch was."

She had previously testified that when she first saw the train it was on this side (meaning the east side) of the Cities Service building, near a switch block some 160 or 170 feet from the crossing.

She further testified that she first heard the whistle when she was opposite Louis Whitte building and traveled to the Old Depot Road a distance of some 168 feet before she saw the train. She was traveling about ten miles per hour. She heard the train whistling incessantly after the first whistle.

Tom Hardisty testified that he was walking south along Old Depot Road north of the railroad crossing. He saw Beatty drive upon the track and stop. He then heard the train whistling incessantly and saw the collision. He estimated the train was running at a speed of 25 miles per hour when it struck the automobile. He saw Beatty get out of the right-hand side of the car and take two steps when the train struck the automobile, which in turn struck Beatty. He did not see the train until it was in about 50 feet of Beatty, due to intervening buildings.

Mrs. Harry Gailey was on Old Depot Road traveling in the same direction as Tom Hardisty and just behind him. Her testimony was similar to...