Beaumont, S. L. & W. R. Co. v. Richmond

• Decision Date: 08 January 1935
• Docket Number: No. 2546.,2546.
• Citation: 78 S.W.2d 232
• Parties: BEAUMONT, S. L. & W. R. CO. v. RICHMOND.
• Court: Texas Court of Appeals

Page 232

78 S.W.2d 232

BEAUMONT, S. L. & W. R. CO. v. RICHMOND.

No. 2546.

Court of Civil Appeals of Texas. Beaumont.

January 8, 1935.

Rehearing Denied January 16, 1935.

Appeal from District Court, Hardin County; Thos. B. Coe, Judge.

Suit by Otis Richmond against the Beaumont, Sour Lake & Western Railroad Company. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

W. G. Reeves, of Beaumont, Andrews, Kelley, Kurth & Campbell, of Houston, and Butler & Pipkin, of Beaumont, for appellant.

J. L. C. McFaddin, of Beaumont, for appellee.

WALKER, Chief Justice.

On the 4th day of September, 1931, appellee, Otis Richmond, drove his automobile into one of appellant's freight trains as it stood across the public highway, leading from the town of Nome through the town of Grayburg to the town of Sour Lake, at a point on the north edge of the town of Grayburg on the side nearest to the town of Sour Lake. Appellee, with two companions, late at night, was driving from Nome to Sour Lake. The jury assessed damages in favor of appellee, for his personal injuries, $1,060, and for damages to his automobile, $225. Many acts of negligence were charged against appellant and found in favor of appellee; but, for the purposes of this opinion, we give only the following special issues which have support in appellee's petition, and which were answered as indicated:

"Special Issue No. 11. Do you find from a preponderance of the evidence that the conditions surrounding the crossing in question were such as to render that crossing more than ordinarily dangerous as a night-time crossing?" Answer: "Yes."

"Special Issue No. 12. Do you find from a preponderance of the evidence that the defendant knew of such conditions surrounding said crossing at the time of the question in question?" Answer: "Yes."

"Special Issue No. 13. Do you find from a preponderance of the evidence that the defendant's failure to provide wig-wag signals, or other signaling devices, for said public crossing constituted negligence under the facts, circumstances and conditions existing at the time of the collision involved in this case?" Answer: "Yes."

"Special Issue No. 14. Do you find from a preponderance of the evidence that such negligence, if any you have found, was a proximate cause of the collision involved in this case?" Answer: "Yes."

Acquitting appellee of all acts of contributory negligence charged against him by appellant, the jury found that immediately prior to the accident and upon the occasion in question he (a) did not fail to keep a proper lookout for any train which might be upon the crossing; (b) he was not driving his automobile with poor and insufficient lights; (c) immediately prior to the accident he did not fail so to control the speed of his automobile that it could not be stopped, with the means reasonably at hand, within the length of the open highway before him, which he could see to be free and clear of obstruction; (d) the speed at which he was driving his automobile was a contributing cause of the collision and his injuries; (e) he did not fail to bring and keep his automobile under proper control as he approached the crossing; (f) under the circumstances, he was not driving at a dangerous and an immoderate rate of speed; (g) he was not driving his automobile at a speed in excess of that at which a man of ordinary prudence would have driven under the circumstances then existing. The jury further found that the railroad crossing was not within a town or village at the time of the accident, and that the accident was not an unavoidable accident. Judgment was entered for appellee for the amount of damages found by the jury.

On two grounds appellant insists it should have had an instructed verdict: (a) The evidence failed to raise against it any of the issues of negligence submitted to the jury; and (b) as a matter of law appellee was guilty of contributory negligence.

Under the first proposition the facts are as follows: The Nome-Sour Lake highway, where it crosses appellant's railroad track, is a concrete highway, its width not shown. Appellant's freight train consisted of sixty-six cars and extended to the east of the crossing about 800 feet and to the west of the crossing about 500 yards. The train was on schedule time and, according to its regular custom, was stopped at that time and place for the purpose of taking on water. The engine was at the water tank about 800 feet east of the crossing. As appellee approached the crossing, the engine and its lights were obscured from his view by houses and staves and other obstructions along the railroad track until he was within less than 200 feet of the crossing. As he approached the crossing, appellee could not see the lights in the caboose and no lights were shown on the train between the engine and the caboose. Neither a flagman nor brakeman was out along the train while it stood across the crossing. At the time appellee struck the train it was standing still and had been standing still for at least five minutes. The crossing was blocked by a flat car, which extended beyond the concrete highway on the east and at least covered the concrete on the west. The flat car was a low-type car and to one approaching the crossing presented a barrier to his view across the highway of only about eight inches. As appellee approached the crossing, there was nothing for quite a distance to obstruct his view of the crossing except the flat car. The night was dark and hazy, with a little mist of rain. As appellee drove towards the crossing, he could see the lights of Sour Lake in front of him and over the top of the flat car; he could also see the crossing sign and the switch light on the other side and over the top of the flat car, but he did not testify that he, in fact, saw these objects. On the issue of lights we quote as follows from appellant's station agent's testimony, questions and answers reduced to narrative:

"That sign is about ten or twelve feet high, I guess. The top of it shows up there about ten or twelve feet above the ground, I judge; and the bottom is about six or eight feet. In other words, if there is a flat car standing on that crossing you could see that railroad crossing sign over the flat car. And if a flat car was standing on that crossing you could see that switch light, approaching from the south. And if there was not a flat car on the crossing you could still see them. In other words, whether there is a flat car on that crossing or not wouldn't make any particular difference as to those signs there. Those signs don't indicate there is a car on the crossing but they indicate it is a crossing; but doesn't indicate it is obstructed or blocked in any manner."

The witness Harris testified, questions and answers reduced to narrative:

"I am acquainted with this crossing where this collision took place; well acquainted with it. I have driven over it a number of times. I sometimes drive a car. The facts in regard to the difficulty in seeing trains standing upon that crossing when approaching from the south, when a flat car is standing upon the crossing are that at night it is pretty hard to see it on account of the lights of Sour Lake, and then automobiles coming down the highway, the lights will shine right under the cars right down the highway, and if you didn't look pretty closely you wouldn't see it. If you were not expecting it you wouldn't see it at all. With a flat car standing across that highway you can see the lights of Sour Lake over the flat car easily.

"* * * The lights I testified to as obscuring or making the view clear on that crossing as you approach it from the south are residence lights."

Dr. Hart testified:

"Q. Dr. Hart, are you acquainted with that crossing down there? A. Yes, sir, I go over it.

"Q. Do you know the condition down there with regard to seeing the lights of Sour Lake in approaching that crossing from the south? A. Yes, sir.

"Q. Can you see them or not? A. Yes, sir."

At the crossing there was no flagman nor signal of any kind whatever to give warning to one approaching the crossing that it was occupied by appellee's freight train.

It is our conclusion that the facts and circumstances of this case were sufficient to carry to the jury the issue of negligence quoted above. When appellant stopped its train across the crossing, blocking it with a flat car, it knew that it was blocking an important and highly traveled highway, that one approaching the crossing would see a barrier across the highway only about eight inches wide, and that over the flat car he could see the lights of Sour Lake and over the flat car could also see the railroad crossing sign and the switch light. Prescott v. Hines, 114 S. C. 262, 103 S. E. 543, by the Supreme Court of South Carolina, presents a case where the defendant blocked a street in the city of Columbia with cars that had no light upon them nor near them, or any guard or watchman to give warning; the night was foggy and smoky, which made the cars standing across the street dark and obscured. It was held that the facts of that case were sufficient to take the issue of negligence to the jury. On their facts the following cases are interestingly in point: Missouri, K. & T. R. Co. v. Long, reported as follows: (Tex. Civ. App.) 293 S. W. 184; (Tex. Com. App.) 299 S. W. 854, on second appeal (Tex. Civ. App.) 23 S.W.(2d) 401 (writ refused); by this court, Texas & N. O. Railway Co. v. Dickson, 72 S. W.(2d) 384, and Orange & N. W. Railway Co. v. Harris, 57 S.W.(2d) 931. The facts of these three cases closely parallel the facts of this case.

Independent of its ordinary use and the ordinary conditions surrounding it, the particular conditions at a particular time may render a crossing extrahazardous. In Tisdale v. Panhandle & S. F. R. Co., 228 S. W. 133, 136, 16 A. L. R. 1264, the Commission of Appeals said: "It seems possible that the Court of Civil Appeals may entertain the view that, unless it be...