Coffey v. Fort Worth & D. Ry. Co., 3174

• Decision Date: 18 November 1955
• Docket Number: No. 3174,3174
• Citation: 285 S.W.2d 453
• Court: Texas Court of Appeals
• Parties: Cecll COFFEY et al., Appellants, v. FORT WORTH & DENVER RAILWAY COMPANY, Appellee.

Page 453

285 S.W.2d 453

Cecll COFFEY et al., Appellants, v. FORT WORTH & DENVER RAILWAY COMPANY, Appellee.

No. 3174.

Court of Civil Appeals of Texas, Eastland.

Nov. 18, 1955.

Rehearing Denied Jan. 6, 1956.

Wagstaff, Harwell, Alvis & Pope, Abilene, Maurice Smith, Anson, for appellants.

McMahon, Springer, Smart & Walter, Abilene, C. E. Brownfield, Jr., Anson, for appellee.

GRISSOM, Chief Justice.

Coffey sued the railway company for damages caused by the collision of his truck and defendant's train at an intersection of highway 180 and defendant's tracks in Anson. He alleged negligence as follows: that defendant, its agents, servants, and employees (a) failed to ring the bell or blow the whistle 80 rods from the crossing; (b) allowed weeds and trees to grow west of the intersection so that the view of persons approaching defendant's track was obstructed; (c) permitted weeds and trees to grow on defendant's right of way immediately west of the intersection 'to the extent that they obstructed the view of the railway crossing sign;' (d) operated defendant's train at a dangerous rate of speed and failed to keep a proper lookout for persons approaching said track; (e) violated an ordinance by moving a railroad car faster than 8 miles per hour; (f) failed to maintain ' an adequate signal bell' to warn traffic of the approach of trains at said intersection; (g) operated defendant train at 30 miles per hour; (h) failed to keep a proper lookout; (i) failed to install and maintain proper signs to warn traffic of the existence of its tracks at the crossing; (j) failed to ring the bell continuously 80 rods from the crossing; (k) failed to warn plaintiff of the approach of said engine by making any audible signal at a time and distance sufficient to warn an 'approaching vehicle' of the approach of the train.

In the alternative, plaintiff alleged that prior to the collision defendant's employees discovered the approach of plaintiff to the crossing at a point sufficient in time and distance that they could, by the use of all reasonable means at their command, have stopped the train before it entered the crossing and thereby avoided the accident; that, upon discovery of plaintiff, defendant's employees realized, or should have realized, plaintiff was in a perilous position and that he either would not or could not extricate himself and they should have used all reasonable means at their command to prevent the collision, but failed to do so. The jury failed to find that any of said acts of alleged negligence was committed by defendant and that same was a proximate cause of plaintiffs' injury and damage.

The jury found, among other things, that (12) immediately before the accident Coffey was in a position of peril; that (13) defendant's employees operating its train discovered his perilous position and realized, or should have realized, that he might not extricate himself therefrom, but that (14) defendant's employees did not discover Coffey's perilous position in time to avoid the accident by the use of all the means at their command. The jury found (18) the collision was the result of an unavoidable accident. The jury also found that (33) immediately before the accident defendant's employees were acting under an emergency and that (34) they did all that an ordinarily prudent person would have done under the same or similar circumstances to avoid the accident.

Judgment was rendered on the verdict for the defendant against Coffey and his insurer, who had paid his compensation, to-wit, intervenor, Commercial Standard Insurance Company, and they have appealed.

Appellant's first and second points are that the court erred in (1) refusing to permit plaintiff to file a trial amendment 'to perfect a ground of negligence alleged against the defendant' after the court had sustained an exception to his petition on the day the case went to trial and in (2) thereafter refusing to permit plaintiff to withdraw his announcement of ready.

Plaintiff's amended petition, on which he went to trial, in paragraph IV(f) alleged negligence as follows:

'Defendant, its agents and servants, were negligent in failing to maintain an adequate signal bell to warn traffic of approach of said trains at said intersection.'

Defendant's exception, which was sustained, was as follows:

'Defendant specially excepts to subsection 'f' of paragraph 4 of said pleading for the reason that the facts therein alleged could not constitute an act of negligence on the part of the defendant herein for the reason that no Federal, State or local law requires it to maintain a signal bell at said crossing, and for the further reason that said allegation in sub-section 'f' does not set out with particularity and certainty the kind and character of signal bell and by the pleading 'failing to maintain an adequate signal bell' does not set out with particularity and certainty any standardized bell or any other type of bell sufficient to place this defendant upon notice of what kind of signal device it is charged with failing to maintain, and by the term 'adequate signal bell', the defendant alleges that this term is too general and is a conclusion of the pleader for the reason that it does not set forth with particularity and certainty what plaintiff terms an adequate signal bell.'

The record shows that the case went to trial on the morning of September 8, 1954. On September 9, 1954, before resting his case, plaintiff sought to file a trial amendment which purported to amend not just section (f) of paragraph IV but all of paragraph IV, which amendment, omitting formal parts, was as follows:

'(1) Defendant, its agents and servants maintained an extra-hazardous crossing, in that said railroad tracks crossed a State Highway which carries heavy traffic and as a car or vehicle approaches the railroad tracks from the West there is a blind corner in that there are numerous houses, buildings and obstructions that would prevent such person traveling on the highway from seeing a train approaching from the South until such vehicle was in such close proximity of such crossing that it would be impossible for such vehicle to stop taking into consideration the safety of the driver of such vehicle and his cargo, and such crossing is further hazardous in that the tracks across the highway are located in such a way and manner that a person traveling on the highway could not see such tracks until approximately on such tracks, and further, that a train approaching from the South would be approaching on a curve and could not be seen by a driver of a vehicle approaching from the West until such vehicle had passed a house immediately West of the railroad and upon observing such approaching train it would be impossible for the driver of the vehicle to determine then where the tracks were and that such approaching train from the South or southwest and on the curved track would appear that the train was running immediately into such approaching vehicle and under such facts and circumstances it was the duty of said railway company to maintain proper signal lights, adequate warning devices or flagmen at such hazardous crossing to warn the approaching vehicles from the West.'

Defendant objected to the filing of said amendment. The order refusing permission to file recites:

'The above styled and numbered case went to trial on the morning of September 8, 1954.

'On the 9th day of September, 1954, while said case was on trial, and before plaintiff had rested his case, plaintiff's attorneys presented the above and foregoing instrument to the Court and requested permission to file same as a Trial Amendment, to which request defendant duly objected; and

'It appearing to the Court that the collision involved in this case occurred on October 6, 1951; that plaintiff's original petition herein was filed August 26, 1953; that the case has been continued for several terms of court; that more than one month prior to September 8, 1954, the case was set for trial on September 8, 1954, of which setting attorneys for all parties were then notified; that prior to such setting, the court had requested all parties to prepare and file the pleadings on which they expected to go to trial; that plaintiff's attorneys have had abundant time within which to prepare and file their pleadings in this case; that to permit the filing of such instrument would necessitate a discharge of the jury and another continuance of the case; that such request should be refused.'

When the court refused to permit plaintiff to file said trial amendment he asked leave to 'withdraw his announcement of ready for trial and to continue the case,' which request was refused. Plaintiff excepted.

Appellants say that the part of plaintiff's pleadings stricken by the exception, to wit: section (f) of paragraph IV, heretofore quoted, was an attempt to allege as a ground of recovery that the railway company maintained an extra-hazardous crossing. We cannot agree that said allegations show an attempt to allege an extra-hazardous crossing.

Appellants contend that Texas Rules of Civil Procedure, rule 66 authorized filing of plaintiff's trial amendment. It provides that if during the trial any defect in the pleading is called to the attention of the court the court 'may' allow the pleadings to be amended and 'shall' do so freely when presentation of the merits will be subserved thereby and the objecting party fails to satisfy the court that allowance of the amendment would prejudice him in maintaining his defense on the merits. Appellants say it has long been held that, when justice demands it, the courts should freely allow amendments, even when the opposite party may be surprised and a delay caused thereby.

Appellants cite, among others, Reiser v. Jennings, Tex.Civ.App., 143 S.W.2d 99 (D.J.C.) and 41B Tex.Jur. 26. It quotes the following from Ann Berta Lodge No. 42, I. O. O. F. v. Leverton, 42 Tex. 18:

'The announcement of ready, when there are...