Fort Worth & D. Ry. Co. v. Barlow

• Citation: 263 S.W.2d 278
• Decision Date: 20 November 1953
• Docket Number: No. 15462,15462
• Parties: FORT WORTH & D. RY. CO. v. BARLOW.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 278

263 S.W.2d 278

FORT WORTH & D. RY. CO. v. BARLOW.

No. 15462.

Court of Civil Appeals of Texas, Fort Worth.

Nov. 20, 1953.

Rehearing Denied Dec. 18, 1953.

Seth W. Barwise and J. C. Whitehurst, Fort Worth, Benson & Benson, Bowie, O. O. Touchstone, Dallas, for appellant.

Donald & Donald, and T. B. Coffield, Bowie, for appellee.

BOYD, Justice.

Appellee Mrs. Ola Barlow recovered judgment for $22,120 against appellant Fort Worth & Denver Railway Company for damages resulting from a collision in which her husband, Milton R. Barlow, lost his life.

The deceased met his death in a collision between a truck he was driving accompanied by appellee, and appellant's train at Lowry Crossing, between Bowie and Bellevue, about 8:50 p. m., December 6, 1950. The night was dark, the weather was cold, but there was no rain, snow, or fog. Deceased and appellee had been familiar with the crossing for many years, having lived near it most of the time for the last forty years, and were living near it at the time of the tragedy. The deceased had crossed the railroad at this point almost daily for some years. On the evening of the accident deceased and appellee had used the crossing on their way to visit in the home of Fred Barlow, a brother of deceased, who lived about tow hundred yards northeast of the crossing. They started home at 8:50 p. m. and the collision occurred a few minutes thereafter.

Appellee alleged many acts of negligence on the part of appellant, all of which were decided against her by the jury, except that at the crossing the rails protruded above the ballast in such manner as to render the crossing unsafe for the traveling public; that appellant knew, or could have known by the exercise of reasonable diligence, of its unsafe condition; that such condition of the crossing was negligence and was a proximate cause of the collision. The jury failed to find that the deceased was negligent in any of the particulars inquired about.

By its first point appellant contends that the deceased was guilty of contributory negligence as a matter of law.

Appellee testified that as they approached the crossing the truck was stopped twenty to thirty feet east of the east rail; she and deceased knew the railroad was there, although there was a warning sign; after stopping, both looked to the right and to the left and listened for a train, but saw or heard none; had there been any blowing of a whistle or any ringing of a bell they would have heard it; deceased had good hearing and good eyesight; the truck windows were closed; having seen or heard no indication of an approaching train, they proceeded to the track; the truck was then traveling seven or eight miles per hour; it seemed like when the front of the truck went over the rails it ceased to move forward, but bumped up and down; it just hung, wedged in there; it bumped up and down and would not pull out; she did not say how long they were on the track before the impact; while they were on the track, deceased saw the lights of the approaching train, and asked appellee if that was a train coming, and she replied that it was; he then said, 'Let's get out;' he told her to jump; appellee got out through the right door, fell down, but got up and got to the back of the truck and in the clear when the train passed by; the last time she saw deceased he was turning loose of the steering wheel and was moving his body like he was getting out. Although the headlights of a train coming from the north, as the train in question came, would be visible to a person at and near the crossing when the train came over Elser Hill, some 4200 feet from the crossing, the evidence was conflicting as to whether, on account of the topography of the country, they would disappear from view before reaching the crossing.

After the collision, portion of deceased's body were found along the track for more than one thousand feet. There was blood on the seat and on the floor of the truck, and its left door was open. The train was about five hours late; there was evidence that it was running about sixty miles per hour, that its headlights were shining, its bell ringing, and its whistle blowing. The jury failed to find for appellee on any of the issues involving these matters.

It is settled that whether there is negligence is a question of law when reasonable minds can come to but one conclusion; and where the conclusion is inescapable that the injuried party was guilty of negligence proximately causing his injuries there is no issue for the jury. Gulf, C. & S. F. Ry. Co. v. Gaddis, Tex.Com.App., 208 S.W. 895; Jones v. Sunshine Grocery & Market, Tex.Civ.App., 236 S.W. 614; Burnett v. Ft. Worth Light & Power Co., 102 Tex. 31, 112 S.W. 1040, 19 L.R.A.N.S. 504; Cross v. Wichita Falls & S. R. Co., Tex.Civ.App., 140 S.W. 567; Cisco & N. E. Ry. Co. v. McCharen, Tex.Civ.App., 118 S.W.2d 844; International & G. N. R. Co. v. Edwards, 100 Tex. 22, 92 S. W. 106; Wichita Valley Ry. Co. v. Fite, Tex.Civ.App., 78 S.W.2d 714; Napier v. Mooneyham, Tex.Civ.App., 94 S.W.2d 564; Texas Mexican Ry. Co. v. Hoy, Tex.Com.App., 24 S.W.2d 18; Standard Paving Co. v. Webb, Tex.Civ.App., 118 S.W.2d 456. The basis for the holdings in such cases appears to be that the injured parties took no care for their own safety and made no effort to avoid the happenings resulting in their injuries.

The general rule, however, is that whether there is negligence is a question of fact. Lone Star Gas Co. v. Fouche, Tex.Civ.App., 190 S.W.2d 501, writ refused w. m.; Swiff v. Michaelis, Tex.Civ.App., 110 S.W.2d 933, writ dismissed; Coleman v. West, Tex.Civ.App., 116 S.W.2d 870; McCullough Box & Crate Co. v. Lies, Tex.Civ.App., 162 S.W.2d 1055, writ refused w. m.; Lackey v. Moffett, Tex.Civ.App., 172 S.W.2d 715; Humble Oil & Refining Co. v. Ooley, Tex.Civ.App., 46 S.W.2d 1038, writ dismissed; Linkenhoger v. Gilbert, Tex.Civ.App., 223 S.W.2d 308, writ refused n. r. e.; Oil City Iron Works v. Stephens, Tex.Civ.App., 182 S.W.2d 370; Horton v. Benson, Tex.Com.App., 277 S.W. 1050; Texas & N. O. R. Co. v. Blake, Tex.Civ.App., 175 S.W.2d 683, writ refused; Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332.

We think the rule to be deduced from the cited cases is that an injured party will not be deemed guilty of contributory negligence as a matter of law when there is some explanation, comprotable with reason, why he did not see the object with which he collided in time to avoid the impact. When some care is shown, the question of its sufficiency is for the jury. Gifford v. Fort Worth & D. C. Ry. Co., Tex.Sup., 249 S.W.2d 190; Texas & N. O. R. Co. v. Blake, supra; Wichita Valley Ry. Co. v. Fite, supra.

This is not a case where the injured party proceeded to and upon a railroad track with an entire lack of care; and we are of the opinion that whether he exercised the degree of care that an ordinarily prudent driver would have exercised under the same or similar circumstances was a question for the trier of the facts.

Another point is that it was error to submit issue No. 7 and its group of correlative issues, No. 7 being, 'Do you find from a preponderance of the evidence that immediately prior to the collision in question the rails of the railroad crossing in question protruded above the ballast in such a way as to render same unsafe for the travelling public?' And then the jury was asked if appellant's employees knew or by the exercise of reasonable diligence could have known of such unsafe condition; if such condition was negligence; and a proximate cause of the collision. All of these issues were answered in the affirmative, such answers constituting the only finding of negligence on the part of appellant. A number of objections were made to these issues, and each was objected to on the ground that it was on the weight of the evidence, and was irrelevant, immaterial, incompetent, and prejudicial.

We cannot escape the conclusion that issue No. 7 was on the weight of the evidence and assumed that the rails protruded above the ballast. The evidence was in direct conflict as to whether the rails protruded above the ballast to any extent, as well as to whether the crossing was 'unsafe.' The witness Reeder, an employee of appellant, who was on the train, testified on direct examination that he examined the crossing immediately after the collision and that '* * * it is graveled up level with the top of the rails, with the exception of where the flange or wheel runs alongside the rail, and it is level over the crossing, and then there is a drop down to the highway. * * * It was a smooth crossing over the track.' On cross-examination he testified as follows:

'Q. Now, you said this area wasn't exactly level, that the rails were a little higher than the ground on either side, is that correct? A. No, sir.

'Q. What did you say? A. I said from the fence up to the rails there was a slight incline.

'Q. All right A. And the gravel between the rails was level, and then it begins dropping off toward the highway.

'Q. A slight incline from the approach up to the rails is what you meant, wasn't it? A. From the right-of-way fence.

'Q. Up to the rails? A. Yes, sir.'

The witness Henigan testified that the gravel was up about even with the track; and to the question, 'Now, where was the gravel, the top of the gravel, with reference to the ball or top of the rails as you saw it there that night?' he answered, 'It was just about level with the track.' Moreover, photographs in the record taken by an apparently disinterested party on the night of the accident indicate that the chat was almost, if not quite, level with the top of the rails.

We believe that since issue No. 7 assumed a disputed fact, its submission was error requiring a reversal. Speer's Special Issues, p. 254, sec. 195, and cases cited in note 15; 41-B Tex.Jur., p. 638, sec. 483.

In its brief and oral argument appellant also insists that issue No. 7 impose an illegal burden upon it, in that it...