Edmiston v. Texas & N. O. R. Co., 8492.

Citation111 S.W.2d 848
Decision Date20 October 1937
Docket NumberNo. 8492.,8492.
PartiesEDMISTON v. TEXAS & N. O. R. CO.
CourtCourt of Appeals of Texas

Appeal from District Court, Travis County; C. A. Wheeler, Judge.

Suit by A. J. Edmiston against the Texas & New Orleans Railroad Company. Judgment for the defendant, and the plaintiff appeals.

Affirmed.

Polk Shelton & Emmett Shelton and Everett L. Looney, all of Austin, for appellant.

Baker, Botts, Andrews & Wharton, of Houston, and Smith, Goldsmith & Bagby, of Austin, for appellee.

BLAIR, Justice.

Appellant, A. J. Edmiston, sued appellee, Texas & New Orleans Railroad Company, for damages for injuries sustained by his wife, Lola Edmiston, in a collision between an automobile, in which she was riding as a guest of Cecil Ramos, and a switch engine operated by the employees of appellee. The accident occurred about 6:45 p. m., just after dark, and where appellee's Llano branch line crosses East Sixth street, in the city of Austin. Appellant pleaded discovered peril and other acts of negligence on the part of the operatives of the switch engine as grounds for a recovery. As defense appellee pleaded certain acts of Cecil Ramos as contributory negligence on his part, which contributory negligence was alleged to be imputable to Lola Edmiston, and alleged certain acts of Lola Edmiston as contributory negligence on her part.

The case was submitted to the jury upon 97 special issues. The jury found the issues submitting discovered peril in favor of appellee railroad. It found that the operatives of the engine were negligent in several particulars alleged, and that each such act of negligence was a proximate cause of the collision and of the injuries to Lola Edmiston. The jury also found that Cecil Ramos, the driver of the automobile, was negligent in several particulars, and that each such negligent act was a proximate cause of the collision; but that neither of such negligent acts of Cecil Ramos was the sole proximate cause of the collision. With respect to the alleged acts of contributory negligence of Lola Edmiston, the jury found that the whistle of the switch engine was blown before it reached the crossing in question; that Lola Edmiston could have in the exercise of ordinary care heard the whistle in time to have warned the driver of the automobile of the engine's approach, and in time for him to have stopped the automobile before it reached the crossing, but that her failure to do so was not negligence; that the headlights on the rear end of the switch engine in question were burning as it approached the point of collision; that Lola Edmiston by the exercise of ordinary care could have seen the burning headlights as the automobile approached the crossing in time to have warned the driver to stop the automobile before it reached the crossing, but that the failure of Lola Edmiston to see the headlights and warn the driver was not negligence on her part; that Lola Edmiston in the exercise of ordinary care could have seen the defendant's switch engine as it approached the crossing in question in time to have warned the driver of the car of that fact, but that her failure to see the engine and to call the attention of the driver of the automobile to the approaching engine was not negligence on her part; that the automobile was being operated at an unlawful rate of speed at the time it approached the crossing; that Lola Edmiston failed to protest to the driver of the automobile of such speed, but that such failure to protest was not negligence; that Lola Edmiston failed to listen, watch, and look out for trains and engines that might be approaching the crossing as the automobile in which she was riding also approached the crossing, but that her failure to listen, watch, and look out for trains and engines was not negligence; and that it was not negligence for her not to have protested to the driver of the automobile to bring the same to a stop immediately prior to the collision.

Appellant filed a motion for rendition of judgment upon the answers of the jury to the special issues submitted, contending that the answers exonerated Lola Edmiston of contributory negligence and convicted appellee railroad of negligence proximately causing the collision and the consequent injury to Lola Edmiston. Appellee did not file a motion for judgment, either upon the answers of the jury or non obstante veredicto; but the trial court overruled appellant's motion for judgment and rendered judgment for appellee, upon the finding and conclusion "that the defendant is entitled to judgment upon the verdict of the jury."

The pleadings and evidence having shown Lola Edmiston guilty of contributory negligence as a matter of law, no issue other than that of discovered peril should have been submitted to the jury, and in consequence, the jury having determined the issue of discovered peril in favor of appellee, the question of whether the trial court could have rendered judgment non obstante veredicto without a written motion of appellee, and notice and hearing thereon, as required by article 2211, as amended in 1931, Vernon's Ann.Civ.St. art. 2211, is not material. The rule is settled, "that where, under no view of the pleadings and evidence, the plaintiff is entitled to recover, the submission of the issues and the findings of the jury are immaterial, and may be disregarded by the court." Vogel v. Allen, 118 Tex. 196, 13 S.W.2d 340, 341; Frank L. Smith Tire Store v. Firestone Tire & Rubber Co., Tex.Civ.App., 68 S.W 2d 577; Amarillo Transfer & Storage Co. v. De Shong, Tex.Civ.App., 82 S.W.2d 381; Simmonds v. St. Louis, B. & M. Ry. Co., 127 Tex. 23, 91 S.W.2d 332; Hines v. Parks, Tex.Com.App., 96 S.W.2d 970. And since the jury eliminated "the issue of discovered peril as a distinct ground of recovery, contributory negligence on the part of the plaintiff [Lola Edmiston, wife of plaintiff] in the suit, which proximately caused or contributed to cause [her] injuries, would be a complete defense, notwithstanding the primary negligence of [appellant's] servants in operating the train." Missouri-K.-T. Ry. Co. v. Cheek, Tex.Civ.App., 18 S.W.2d 804, 806, writ of error dismissed.

We find from the undisputed evidence that Lola Edmiston was guilty of contributory negligence in the following particulars plead by appellee:

1. In failing to listen, watch, and look out for appellee's switch engine as the automobile in which she was riding on the front seat with the driver approached the railroad crossing, which she could have seen by the exercise of ordinary care in time to have called attention of the driver of the automobile to the approaching engine.

2. In failing to call attention of the driver of the automobile to the approaching switch engine, which she could by the exercise of ordinary care have seen as it approached the point of collision, in time for the driver to have stopped the automobile and avoided the collision with the switch engine.

3. In failing to exercise ordinary care to listen, watch, and look out for the defendant's switch engine, which by the exercise of ordinary care she could have seen the burning headlight on the rear of such engine as it backed toward the street and the automobile in which she was riding approached the railroad crossing.

The evidence showed that Lola Edmiston was employed on the day of the accident as a waitress in the Govalle Beer Garden. Cecil Ramos, a Mexican, had spent most of the afternoon at this beer garden. She testified that she and Ramos each drank two bottles of beer about 4 o'clock in the afternoon before the accident, at about 6:45. Lola Edmiston lived in a room adjoining the beer garden. She contemplated changing employment, and asked Cecil Ramos for a ride into the city of Austin. They started in Cecil Ramos's automobile and proceeded to East Sixth street. When the automobile turned into East Sixth street, which runs east and west, it was at a point about 810 feet from the place where the collision occurred. East Sixth street is level and straight, paved, and a main thoroughfare leading to all points east of Austin. At the point where the automobile entered East Sixth street and just south of the street were some buildings and oil tanks which may have for a very short distance obstructed the view of the approaching engine, which was necessarily slightly to the left of the front or straightahead view of the occupants of the automobile as they came into the street. There was a railroad crossing with a statutory crossbar warning sign a short distance from where the automobile first entered East sixth street. The automobile passed over this crossing and proceeded several hundred feet to the crossing where the accident occurred, and where another statutory crossbar warning sign stood, and where a street light was burning. The railroad tracks did not cross East Sixth street at right angle, but in a northerly-southerly direction. The switch engine had left the main line near Canadian street and was approaching East Sixth street from a southerly direction, with the headlight on the rear of the engine, the engine backing at the time, shining slightly to the right of the crossing and more in the direction of the automobile in which Lola Edmiston was riding than it would have if the railroad track had crossed the street at right angle, thus giving her a better opportunity to observe the headlight of the approaching engine. There was no obstruction of any sort to prevent Lola Edmiston from seeing the engine, or from seeing the light on the rear of the engine at it came across from Canadian street and approached East Sixth street. For at least 800 or more feet the view of the approaching engine was plain and unobstructed. Disinterested witnesses fixed the speed of the automobile at from 30 to 35 miles per hour, and the speed of the engine at more than 6 and less than 12 miles per hour. As to how the accident occurred Lola Edmiston...

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