Beaumont, S. L. & W. Ry. Co. v. Sterling

• Decision Date: 26 March 1924
• Docket Number: (No. 1053.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 260 S.W. 320
• Parties: BEAUMONT, S. L. & W. RY. CO. v. STERLING et al.
• Court: Texas Court of Appeals

260 S.W. 320

BEAUMONT, S. L. & W. RY. CO. v. STERLING et al.

(No. 1053.)^*

Court of Civil Appeals of Texas. Beaumont.

March 26, 1924.

Rehearing Denied April 2, 1924.

Appeal from District Court, Liberty County; J. M. Combs, Judge.

Action by Mrs. B. G. Sterling, individually, and as next friend of Mary Katherine Sterling, against the Beaumont, Sour Lake & Western Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Andrews, Streetman, Logue & Mobley, of Houston, and E. B. Pickett, Jr., of Liberty, for appellant.

Ned B. Morris, of Houston, and J. Llewellyn, of Liberty, for appellees.

O'QUINN, J.

Mrs. B. G. Sterling sued the appellant in her own right and as next friend of her minor daughter, Mary Katherine Sterling, to recover damages for the death of B. G. Sterling, who was the husband of Mrs. Sterling and the father of said minor, occasioned by the alleged negligence of appellant.

The defendant answered by general denial and special plea of contributory negligence.

Appellant offered no evidence. At the conclusion of the plaintiffs' evidence, appellant requested a peremptory instruction in its favor, which was denied, and the case was submitted to the jury upon special issues, upon their answers to which judgment was rendered against the defendant in the sum of $62,400, from which judgment defendant brings this appeal.

The facts, briefly stated, show that deceased was killed on a public road crossing of appellant's railroad by a collision between a Ford car, in which he was traveling, and an east-bound passenger train of defendant. At the point where the accident occurred, the track ran almost east and west, and was straight for a distance of 3 or 4 miles in each direction from the crossing. The deceased was traveling a public road that crossed the railroad almost at right angles. The train was going east, and deceased was traveling practically north. The wind was blowing from deceased toward the train. Deceased was driving a Ford roadster with a truck body and a top, which car was old and very noisy when running. The territory was open, level prairie, and there was nothing to obstruct a view of the track except a line of telegraph poles on the side of the railroad between the train and deceased. The roadbed was elevated above the surface level some 30 inches at the crossing and for quite a distance on each side of the crossing. The dirt road, as it approached the crossing, was elevated to correspond with the grade of the railroad. This was a much-traveled public road. The deceased lived at Dayton and worked for the Humble Oil & Refining Company in the oil field north of Dayton, and was going to his work, and had left home that morning later than usual. The train was running very fast. The whistle was not blown nor the bell rung at any point for the crossing. There was no eyewitness who testified as to the conduct of deceased or the manner of his traveling on his approach to the crossing. The automobile was struck behind the seat and knocked eastward on the north side of the track, and on the east side of the dirt road. The accident occurred about 9:30 or 10 o'clock in the morning.

The jury found, in answer to the special issues, among other things; (1) That the whistle was not sounded or the bell rung on the train's approaching the crossing; (2) that the failure to blow the whistle and ring the bell was a proximate cause of the death of the deceased; (3) that deceased was not guilty of contributory negligence in approaching and attempting to cross the railroad track; (4) that by looking or listening deceased could have discovered the approaching train prior to driving into a place of danger; (5) that deceased did not look or listen for an approaching train prior to driving into a place of danger; (6) that his failure to look or listen was not negligence on the part of the deceased; (7) that deceased's failure to look or listen was not a proximate cause of the collision and death of deceased; and (8) assessed the damages against defendant in the sum of $62,400.

The request for a peremptory instruction was based upon the contention of appellant (1) that there was no evidence from which the jury could legitimately find that the negligence in failing to ring the bell or blow the whistle proximately caused the death of the deceased; and (2) because it conclusively appeared, as a matter of law, that the deceased was guilty of contributory negligence.

The undisputed evidence shows that the whistle was not sounded and that the bell was not rung, as required by article 6564 of the Revised Statutes. This makes appellant guilty of negligence per se, which if same was a proximate cause of Sterling's death, rendered appellant liable and, unless deceased was guilty of contributory negligence that was a proximate cause of his death, the judgment should be affirmed.

Appellant does not attack the finding of the jury as to the failure to sound the whistle and ring the bell, but insists that under the facts and circumstances in evidence, deceased was guilty of contributory negligence, as a matter of law, and hence that the judgment should be set aside.

The circumstances of the collision are unexplained. No eyewitness who saw the accident testified in the case. The evidence as to the accident is wholly circumstantial. Under the facts as disclosed by the record, was deceased guilty of contributory negligence as a matter of law?

Appellant contends that, as the jury found that deceased did not look or listen for an approaching train, and that if he had looked he could have seen the train, or if he had listened he could have heard the train, therefore he either knowingly accepted the hazard of crossing the railroad track in front of a rapidly approaching train, taking the chance that he might be able to get across ahead of it, or, if he went into danger without knowing of the approach of the train, he did so because he had failed to exercise any care whatever for his safety.

This contention of appellant is but the conclusion or presumption of appellant from the facts and circumstances given in the trial of the case. That there can be no presumption indulged that deceased was guilty of contributory negligence is well settled. In the absence of evidence to the contrary, we must assume that he acted as a reasonably prudent person would under all the circumstances. Railway v. Shoemaker, 98 Tex. 456, 84 S. W. 1049; Wells Fargo & Company v. Benjamin, 107 Tex. 331, 179 S. W. 513; Hines v. Richardson (Tex. Civ. App.) 232 S. W. 889. While the law imposes upon one who is about to go upon a railroad crossing the duty to exercise ordinary prudence for his own safety, there is no statute in this state that required a person about to cross a railroad track to either look or listen for an approaching train, and his failure to do so does not, of itself, constitute contributory negligence as a matter of law. Frugia v. Railway, 36 Tex. Civ. App. 648, 82 S. W. 814; Railway Co. v. Tinon (Tex. Civ. App.) 117 S. W. 936 (writ refused); Citizens' Railway v. Robertson, 58 Tex. Civ. App. 566, 125 S. W. 343 (writ refused); Trochta v. Railway (Tex. Com. App.) 218 S. W. 1038; Railway v. Harrington (Tex. Com. App.) 235 S. W. 192; Payne v. Young (Tex. Civ. App.) 241 S. W. 1094. It cannot be said as a matter of law that any one or more things deceased did or failed to do were, prima facie, the failure to use such care and caution as a reasonably prudent person would have exercised under like circumstances. Railway v. Shieder, 88 Tex. 163, 30 S. W. 902, 28 L. R. A. 538; Missouri Pac. Railway Co. v. Lee, 70 Tex. 501, 7 S. W. 857. In the case last cited, the defendant railway company asked instructions to the effect that it was the duty of deceased to make use of his senses of sight and hearing to discover an approaching train, and that, if he was...