Davis v. Pettitt

• Decision Date: 27 February 1924
• Docket Number: (No. 429-3853.)
• Citation: 258 S.W. 1046
• Parties: DAVIS, Agent, v. PETTITT.
• Court: Texas Supreme Court

258 S.W. 1046

DAVIS, Agent, v. PETTITT.

(No. 429-3853.)

Commission of Appeals of Texas, Section B.

February 27, 1924.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by Mose Pettitt against James C. Davis, Agent. Judgment for plaintiff was affirmed by the Court of Civil Appeals (242 S. W. 783), and defendant brings error. Reversed and remanded.

Baker, Botts, Parker & Garwood, of Houston, Geo. P. Willis, of El Campo, and Proctor, Vandenburge, Crain & Mitchell, of Victoria, for plaintiff in error.

Jno. W. Parker, of Houston, for defendant in error.

STAYTON, J.

This suit was brought for damages by reason of a collision at a public crossing between a train operated by the Director General of Railroads and an automobile in which Mose Pettitt, the plaintiff below, was riding. James C. Davis, Agent, was substituted as defendant. Judgment for plaintiff in the district court was affirmed by the Court of Civil Appeals, Justice Lane dissenting (242 S. W. 783). Defendant's application for writ of error was granted upon his first assignment, which raises the point that the trial court, in the submission of the case to the jury upon special issues, should have explained to them, in accordance with a requested charge, at what place the law allowed the whistle on the locomotive to be sounded in order to relieve the defendant of the negligence imposed by R. S. art. 6564, and that the Court of Civil Appeals erred in holding to the contrary. The particular special issue that was given in the trial court submitted the question substantially in the language of the statute: that is, whether the whistle was sounded "a distance of at least eighty rods from the public road crossing." There was testimony that it was sounded for the crossing above the one at which the injury occurred; and defendant contends that this would have been sufficient, if a sufficient warning at the second crossing, in accordance with two decisions of the Supreme Court, presently to be noted.

The opposing contentions are that the special issue, as submitted, was in the words of the statute and needed no explanation; that the requested charge was properly refused because only applicable to a signal given for a remote crossing half a mile distant, instead of "for" the particular crossing of the accident, and hence was not within the statute; that the requested charge was erroneous in that it was not applicable to persons so far distant from the crossing as were Pettitt and his companions at the time the signal, if any, was given; that the finding of the jury that the bell was not rung, rendered error, if any, in the refusal of this charge, which applied alone to the sounding of the whistle, harmless, because the statute required both signals; that the charge was not justified, because no defense of its nature was pleaded; that it was not authorized by the evidence because the testimony, applicable to it, was incidental, not material, and beyond the theory of both parties; and that it was properly refused because not a definition or explanation but an attempt to inject a charge into a case that was being submitted on special issues.

These opposing contentions will be examined in the light of the record, the facts and the law, considered applicable to them.

Pettitt's petition alleged that the Director General "rested under a duty to give the statutory signals by bell and whistle upon approaching the said crossing," and that the train approached the crossing "without blowing the engine whistle and ringing the bell at a distance of at least 80 rods" from it and "without keeping the bell ringing until the said crossing was passed." To these allegations a general denial alone was pleaded by the Federal Agent.

The evidence showed that in the vicinity of the accident there were two public road crossings a half mile apart; that is, the crossing of the accident and an upper crossing, distant one-half mile. Six witnesses testified that no whistle was blown and no bell rung between these crossings. An equal number testified that a whistle was blown in the vicinity of the crossing of the accident, of whom three or four located it as between the two crossings. Prominent in all of the testimony was the version that a whistle was either sounded or not sounded "for" the crossing of the accident, and that in the immediate approach to the crossing was a whistling post at which it was designed that the whistle should be blown.

One of the witnesses who testified that no whistle was sounded between the crossings was standing at the time of the approach of the train within one or two hundred yards of the crossing of the accident. He had stopped at or about that point for the train to pass. On cross-examination, he testified that he stopped because he heard the train coming, in that he heard the whistle. "I heard the whistle. I heard the whistle about three-quarters of a mile away. * * * The train blew for the upper crossing." On re-direct examination, he repeated this testimony. This witness was plaintiff's witness. The locomotive engineer, who was a witness for defendant, testified, on cross-examination, that there was a whistling post for the upper crossing a quarter of a mile distant from it and three-quarters of a mile from the place of the accident. "I sounded the whistle for that crossing. When I did that I was right at the whistling post." He also testified, on the same cross-examination, that on a still day the whistle could have been heard at a distance of from three to five miles and that on the day of the accident it could have been heard a "couple of miles."

The sole ground of negligence submitted to the jury was with respect to the statutory signals. The special issues that were propounded upon that question are quoted:

"(1) Did those in charge of the locomotive fail to sound the whistle thereon, a distance of at least 80 roads (440 yards) from the public road crossing and fail at such distance to commence ringing, and to continue to ring, the bell thereon, until just before the collision occurred? Answer, `Yes' or `No.'"

"(2) If answer `Yes' to special issue No. 1, then was the failure to thus sound the whistle and ring the bell a proximate cause of the injury of the plaintiff? Answer `Yes' or `No.'"

The only charge given in connection with these special issues was an explanation as to when negligence is "the `proximate cause'" of an injury.

The defendant requested the following charge:

"You are instructed that, if you believe from the evidence that the whistle of the engine was sounded at a distance of more than 80 rods from the crossing where the collision occurred, and that such point at which the whistle was so sounded was so situated as that said whistle so sounded at such point could be heard at and in vicinity of said crossing, and was sufficient to constitute a warning to those about to use the crossing of the approach of the train, you will in your findings under issue No. 1 find that the whistle was sounded at least 80 rods from the public crossing when the collision occurred."

The court refused the above charge, and the jury answered issue No. 1 and also issue No. 2 in the affirmative — that is, adversely to defendant. The approval, by the Court of Civil Appeals, of this ruling of the trial court is the basis of the assignment of error now under consideration.

In determining whether the ruling was erroneous, it will first be proper to quote the statute (R. S. art. 6564) upon which the negligence in the case was predicated:

"A bell of at least thirty pounds weight and a steam whistle shall be placed on each locomotive engine, and the whistle shall be blown and the bell rung at the distance of at least 80 rods from the place where the railroad shall cross any public road or street, and such bell shall be kept ringing until it shall have crossed such public road, or stopped; and each locomotive engine approaching a place where two lines of railway cross each other, shall, before reaching such railway crossing, be brought to a full stop; and any engineer having charge of such engine, and neglecting to comply with any of the provisions of this article, shall be punished for such neglect as provided in the Penal Code; and the corporation operating such railway shall be liable for all damages which shall be sustained by any person by reason of any such neglect; provided, however, that the full stop at such crossings may be discontinued when the railroads crossing each other shall put into full operation at such crossing an interlocking switch and signal apparatus, and shall keep a flagman in attendance at such crossing."

It will be noticed that, in some respects, the statute is indefinite and uncertain. The letter of it fixes a minimum distance, for the sounding of the whistle, of "not less than 80 rods," that is, one quarter of a mile. But the maximum is not defined. In that respect, the actual words of the statute might be complied with by the absurd resort of whistling only once for all crossings encountered in a day's trip. From the words of the statute, themselves, no answer is gotten to the question of where the whistle must be sounded when crossings are to be found many miles apart as in numerous places — particularly the unsettled, sandy, mountainous, and pastured parts of the state — nor where it must be sounded when they are reached every 100 yards, more or less, as in almost all of the towns and cities of the state. To say that, in the former case, a signal may be given at any place between crossings, provided it be given for the next crossing, and, although as much as 10 miles away from it, is no less disturbing than to say that, as to city "streets," it need not be given at all because they are at less distances apart than the minimum of one quarter of a mile.

The purpose of the statute must be looked to...