Ford v. Panhandle & Santa Fe Ry. Co.

• Decision Date: 01 October 1952
• Docket Number: No. A-3523,A-3523
• Citation: 252 S.W.2d 561,151 Tex. 538
• Parties: FORD v. PANHANDLE & SANTA FE RY. CO.
• Court: Texas Supreme Court

Page 561

252 S.W.2d 561

151 Tex. 538

FORD v. PANHANDLE & SANTA FE RY. CO.

No. A-3523.

Supreme Court of Texas.

Oct. 1, 1952.

Rehearing Denied Dec. 3, 1952.

Patterson, Tabb & Duncan, Dallas, for petitioner.

Lewis Jeffrey, Amarillo, for respondent.

CALVERT, Justice.

Petitioner, as plaintiff, sought damages of respondent, as defendant, for injuries sustained in a railroad crossing collision. The case went to trial before a jury on pleadings by the plaintiff charging that the collision was proximately caused by various negligent acts of the defendant, with additional general allegations charging the defendant with liability under the doctrine of discovered peril. At the conclusion of the evidence the plaintiff waived all grounds of liability and recovery save that of discovered peril; and, having overruled the defendant's motion for instructed verdict, the trial judge submitted the case to the jury on issues of discovered peril and certain defensive issues of unavoidable accident and sole proximate cause. In the course of time the jury reportrd that it was unable to agree on answers to the submitted issues, whereupon the defendant renewed its motion for an instructed verdict or in the alternative that the case be withdrawn from the jury and judgment be rendered for the defendant. The motion was based upon the absence of evidence raising the issue of discovered peril. The motion was granted, the jury was dischrged, and judgment was rendered for the defendant. The judgment was affirmed by the Court of Civil Appeals. 246 S.W.2d 233.

In this Court the defendant seeks to sustain the judgments of the courts below upon the following grounds: (1) That the doctrine of discovered peril is not available to a plaintiff as a ground of recovery in the absence of proof of primary negligence on the part of the defendant; and (2) that there was no evidence raising the issue of discovered peril.

In support of its first proposition defendant cites the cases of Terry v. English, 130 Tex. 632, 112 S.W.2d 446, and Texas Pacific Coal & Oil Co. v. Wells, Tex.Civ.App., 151 S.W.2d 927, 932, affirmed 140 Tex. 2, 164 S.W.2d 660. Neither of the cited cases support the proposition asserted. On the other hand, there are many decisions of the courts of this state sustaining a recovery based on the doctrine of discovered peril where there was present in such cases no issue of primary negligence on the part of the defendant. As an example, see Sisti v. Thompson, 149 Tex. 189, 229 S.W.2d 610. Obviously this must be so. If one discovers another in a position where injury in all reasonable probability will be inflicated unless the discoverer uses ordinary care to prevent the injury, the duty to use such care arises, and that wholly without reference to the character of the discoverer's conduct before the discovery.

The defendant lays particular stress upon the absence of evidence to show that the defendant discovered the plaintiff's peril in time to have avoided injuring him and its absence to show that the defendant failed to use all the means at hand to avoid injuring him. To put it another way, the defendant says that the evidence in the record before us shows conclusively and as a matter of law that the defendant did not discover plaintiff's peril in time to avoid injuring him and that it also shows conclusively and as a matter of law that the operatives of defendant's train used all the means at hand, after discovering the plaintiff's peril, to avoid injuring him.

The quantum of proof required of the plaintiff on these elements of discovered peril in order to entitle him to have them submitted to the jury was such facts and circumstances as taken together with all reasonable inferences therefrom constituted some evidence of probative force of their existence. White v. White, 141 Tex. 328, 172 S.W.2d 295; Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725; Fitz-Gerald v. Hull, Tex.Sup, 237 S.W.2d 256.

In determining whether the plaintiff discharged this burden we must view and interpret the evidence in the record in its most favorable light to the plaintiff, disregarding all evidence and the inferences therefrom favorable to the defendant. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; White v. White, supra.

The collision occurred at about 10:25 o'clock in the morning in the City of Levelland where the defendant's track crosses Avenue H. The plaintiff was driving north on Avenue H and the train, with six loaded and fourteen empty cars, approached from the east. It was a clear day, visibility was good, and the view of the crossing was unobstructed.

It was the theory of the plaintiff that the sun shining from the east prevented his seeing the train until the front wheels of his automobile had crossed the first rail at which time, discovering the nearness of the train bearing down upon him, he stepped on the gas in the belief that he 'would beat it'.

We first inquire whether the evidence shows conclusively that the train operatives exercised ordinary care in the use of all means at hand to avoid injuring the plaintiff. Or, on the other hand, are there such facts and circumstances in the record viewed most favorably to the plaintiff, which with all reasonable inferences therefrom, entitled the plaintiff to have this issue submitted to the jury?

Much of the evidence was conflicting, and it must be borne in mind that it was the province of the jury to judge the credibility of the witnesses and the weight to be given their testimony. It was their province also to resolve conflicts and inconsistencies in the testimony of any one witness as well as in the testimony of different witnesses. Texas Law of Evidence by McCormick and Ray, page 3, Sec. 3; Austin Fire Ins. Co. v. Adams-Childers Co., Tex.Com.App., 246 S.W. 365; Gulf, C. & S. F. Ry. Co. v. Higginbotham, Tex.Civ.App., 173 S.W. 482, no writ history.

Defendant's fireman, who was on the left side of the engine, testified that he first saw the plaintiff's automobile when the train was some 300 feet from the crossing, and that he estimated the speed of the automobile at that time to be 15 miles per hour and the speed of the train to be 10 to 15 miles per hour; that the speed of the automobile remained unchanged; that because of the slow speed it was making he at first thought the automobile would stop but concluded it 'probably would not stop' from the crossing and the pilot of the engine was 'approximately 100 feet' therefrom; that at this point he was 'aware that the car in question was in a position of peril' and 'that if something didn't happen' they 'were going to hit that car'; that at this point he called to the engineer to apply the emergency brakes-'big-hole it' -which the engineer did; that when he told the engineer to 'big-hole' it he thought the plaintiff 'was in a position which he could not get out of by himself'.

When the fireman discovered the perilous position of the plaintiff it was his duty to warn the engineer and to call for the application of the emergency brakes. It then became the duty of the engineer to apply the emergency brakes. It is not suggested that this could not have been done with safety to the train. The fireman and the engineer testified that the brakes were applied, the fireman testifying that they were applied at 'approximately 100 feet' and the engineer testifying that they were applied at 30 to 40 feet of the crossing, but the jury was under no obligation to believe them. 'A jury will not be bound by the statement of defendant as to when he discovered the danger of plaintiff and as to the efforts made to avoid the injury'. Southland Greyhound Lines, Inc., v. Richards, Tex.Civ.App., 77 S.W.2d 272, 273, writ dism.; Quanah, Acme & Pacific Ry. Co. v. Eblen, Tex.Civ.App., 55 S.W.2d 1060, 1065, writ refused.

A simple analysis of the testimony of the fireman will suffice to demonstrate the adequacy of the evidence to take to the jury the issue of failure to apply the emergency brakes. The fireman's testimony would support a conclusion by the jury that at the time the automobile was 300 feet from the crossing traveling toward the crossing at a rate of speed of 15 miles per hour the train was also 300 feet from the crossing traveling toward the crossing at a rate of speed of 15 miles per hour, a rate of speed confirmed by the engineer, the conductor and two brakemen. His testimony and that of a disinterested witness is that the speed of the automobile remained unchanged. If there were no application of the brakes of the train so that its rate of speed also remained unchanged, the train and the automobile would have arrived at the crossing at almost the same instant. They did arrive there at almost the same instant. It follows that this was a strong circumstance that the brakes of the train were not applied and the speed of the train was not diminished before it reached the crossing. But there are other supporting circumstances also. One nearby witness watching the approach of the train heard no noise indicating an application of emergency brakes and observed no appreciable diminution of speed of the train before it reached the crossing. The plaintiff saw no sliding wheels but the wheels just 'kept rolling on,' although the conductor testified that the application of emergency brakes would cause the wheels on the empty cars to slide. The fireman testified that if the emergency brakes had been applied when he first saw the plaintiff the train could have been stopped before reaching the crossing, a distance of 300 feet, and yet the train was not stopped until the engine had gone 365 feet beyond the crossing, another circumstance to bolster a conclusion by the jury that the brakes were not applied before the train reached the crossing.

We also hold from an analysis of the evidence that a jury issue was raised on the question of whether the discovery of the plaintiff's peril was made in time to avoid injury to him. In this connection, the plaintiff...