Cross v. Wichita Falls & S. R. Co.

• Decision Date: 10 May 1940
• Docket Number: No. 14090.,14090.
• Court: Texas Court of Appeals
• Parties: CROSS v. WICHITA FALLS & S. R. CO.

140 S.W.2d 567

CROSS v. WICHITA FALLS & S. R. CO.

No. 14090.

Court of Civil Appeals of Texas. Fort Worth.

May 10, 1940.

Appeal from District Court, Young County; Allan D. Montgomery, Judge.

Action by M. S. Cross against the Wichita Falls & Southern Railroad Company for injuries sustained when plaintiff's automobile collided with an oil tank car standing on railroad crossing. From judgment on a directed verdict for defendant, plaintiff appeals.

Affirmed.

Jimmie Cunningham and Tom M. Miller, both of Graham, for appellant.

Fred T. Arnold, of Graham, G. C. McDermett, of Wichita Falls, and John B. King, of Dallas (Bullington, Humphrey & Humphrey, of Wichita Falls, of counsel), for appellee.

SPEER, Justice.

This is an appeal by plaintiff, M. S. Cross, from a directed verdict in favor of defendant, Wichita Falls & Southern Railroad Company, tried in the District Court of Young County, Texas.

Plaintiff was injured in Archer City when he drove his automobile along a public street and highway at about 10 o'clock on a dark, misty night in April in 1938, and collided with an oil tank car standing on the intersection of the highway and railway track. The defendant was charged with negligence in several respects, claimed to have proximately caused the injury. Defendant's acts, constituting the alleged negligence, are said to be, (a) leaving a train across the highway for more than five minutes, (b) that an oil tank car stood across the highway, blocking traffic, and no light or other signal was placed on it to warn the public of its presence, and (c) failure to ring the bell or sound the whistle of the locomotive to give a signal of the presence of the train across the highway. Defendant plead general denial and contributory negligence in many ways, including inadequate brakes and lights on the automobile and plaintiff's failure to keep a lookout for his own safety.

It seems to be conceded that the court gave the summary instruction for defendant upon the theory that as a matter of law plaintiff was guilty of negligence proximately causing the accident. It will therefore be unnecessary to discuss at length the alleged negligent acts of defendant. It is well settled that a party cannot recover for an injury sustained, if the act complained of was proximately contributed to by the negligent act of the injured party. 30 Tex.Jur. § 88, p. 754.

It may be said that as a general rule, whether or not certain acts constitute negligence and proximate cause present jury issues, for, after all is said, one's conduct in such cases is to be measured by what a reasonably prudent person would have done under like or similar circumstances. It is equally well settled by our courts that if the facts are such that reasonable minds can reach but one conclusion, no jury question is raised. Stated another way, when there exists such a state of facts that reasonable minds, when considering them in the light of all the circumstances, can reach different conclusions, then whether there is negligence, either direct or contributory, is a question for the jury. St. Louis B. & M. R. Co. v. Brack et al., Tex. Civ.App., 102 S.W.2d 261.

In the case at bar, a directed verdict was returned and the controlling question in this appeal is, Did the trial court commit error in taking the case from the jury? We have carefully studied every phase of the evidence brought forward in the narrative statement of facts, and to construe it in its most favorable light to plaintiff's contention, we believe no reversible error is shown.

On the night of April 7, 1938, plaintiff and a friend were desirous of going to the latter's home in Archer City, situated beyond the railroad tracks from the business part of town. The friend walked outside of the building and waited perhaps ten minutes while plaintiff prepared to close the place for the evening. The night was dark and it was misting rain. They got in plaintiff's car and drove down State Highway No. 25, about 600 feet to where the highway intersects the defendant's tracks. The highway carries much traffic, although none other than plaintiff's car is shown to have been on the road at the time and place of the collision. Plaintiff and his friend, Mr. Crowley, knew the railway tracks were there and each had crossed them many times in the past. Plaintiff was driving at around 15 to 20 miles per hour, his lights were good and his brakes adequate to stop his car within a distance illumined by his lights. A "railroad crossing" sign stood near the pavement 96 feet west of the railroad track and a street light, 10 feet higher than the sign, was located 14 feet east, between the sign and the tracks; the pavement is level from the sign to the tracks, a distance of between 90 and 100 feet. Defendant's extra freight train was standing on its track, the engine and 20 cars had passed the crossing and there were 12 cars in the train that had not crossed the intersection. An oil tank car stood directly on the intersection of the track and the highway. Plaintiff's automobile struck the tank car near one end where the trucks support it; after the collision the automobile was stuck under the frame work of the tank car. Plaintiff was injured in the collision, for which this suit was instituted. Plaintiff testified: "Yes, I had been over that crossing a number of times before the collision; I knew the railroad tracks were down there; I knew they ran trains over those tracks; I didn't think anything about approaching the railroad tracks, I never thought anything about it." Again he said: "I didn't see that train across the crossing until I ran into it; we were right on it before we ever seen it; it rose up like a cloud; I guess I hit the north end of the tank car, hit the trucks; we hit the thing and run under the tank car." He further testified: "Yes, my headlights were burning all the way down there; I guess they were good headlights; I guess they would shine 500 feet down the highway, I never did measure that to see; * * * I could have stopped my car in the distance that my lights picked up the train, considering the condition of my lights and brakes. I figure my lights undoubtedly went under that car. I don't know how high that car was off the ground, but I believe it was about chest high, but I don't know, I was right up on it before I saw it. When I saw this tank car with my lights shining, the light went in under the car I guess; the lights had been shining on the road ahead of me." Again he said: "If I had stopped my car when I entered the intersection of the highway and railroad tracks, I don't know whether I could have seen the train or not, I didn't see any train, considering the weather conditions and everything. I think I could have stopped my car at that distance. * * * The tank car was the first thing I seen; it appeared like it was a cloud rising above; I guess my lights were shining under it; I didn't see anything down the pavement, I was looking down the highway." Other...