Fort Worth & R. G. Ry. Co. v. Sageser

• Decision Date: 10 May 1929
• Docket Number: (No. 566.)
• Citation: 18 S.W.2d 246
• Parties: FORT WORTH & R. G. RY. CO. v. SAGESER et al.
• Court: Texas Court of Appeals

Page 246

18 S.W.2d 246

FORT WORTH & R. G. RY. CO. v. SAGESER et al.

(No. 566.)

Court of Civil Appeals of Texas. Eastland.

May 10, 1929.

Rehearing Denied June 7, 1929.

Appeal from District Court, Erath County; J. B. Keith, Judge.

Action by Mrs. Gladys Sageser and others against the Fort Worth & Rio Grande Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Chandler & Chandler, of Stephenville, and Hiner & Pannill and Goree, Odell & Allen, all of Fort Worth, for appellant.

Oxford & Johnson, of Stephenville, for appellees.

LESLIE, J.

On December 7, 1927, Miller Sageser, while driving an automobile at a point where a public street in the town of Stephenville crosses a railway track, was run over and killed by a passenger train of the Fort Worth & Rio Grande Railway Company. This suit is by Mrs. Gladys Sageser, wife of the deceased, and Miller Marie Sageser, their minor child, against that company for damages resulting to them from the death of said husband and father. Various grounds of negligence were alleged as the proximate cause of Miller Sageser's death, and the defendant answered by general demurrer, special exceptions, general denial, and specially pleaded various grounds of contributory negligence on the part of the deceased, proximately contributing to his death. The trial was before the court and jury, and upon special issues a judgment was rendered in favor of the wife for $4,000 and in favor of the daughter for $3,000. The defendant prosecutes this appeal. There are 16 propositions of law based upon 55 assignments of error. They will be disposed of in the order presented.

By the first and second propositions appellant assails the action of the trial court in refusing its request for peremptory instructions in its favor. In the first proposition it is contended that the speed of the train was not, as a matter of law, the proximate cause of the collision, and by the second the contention is made that the deceased was guilty of contributory negligence as a matter of law. The two propositions, involving substantially the same subject matter, have been briefed and treated together. They will be considered in like manner.

The major portion of appellant's brief has been directed to an effort to establish the above propositions, and especially the second, which lays special emphasis upon its contentions with reference to contributory negligence. The jury, in answer to special issue No. 1, found the defendant in the operation of its train at an excessive rate of speed guilty of negligence, which was the proximate cause of Sageser's death. There is evidence in the record to support such findings and justify a judgment thereon, provided recovery is not defeated on the ground of contributory negligence. In view of the disposition we shall make of this case, it will be unnecessary to enter into any detailed statement of the testimony relating to the speed of the train at the time of the collision.

The second proposition presents a more serious question, and it has challenged the most careful attention of this court. Able counsel, in behalf of appellant and appellees, respectively, have favored us with most interesting and exhaustive briefs in which they have collated the authorities which indicate when the testimony establishes contributory negligence as a matter of law, and when it presents merely an issue of fact to be submitted to the jury. Among the leading authorities dealing with this question, and undertaking to reveal the line of demarkation between the two classes of cases, are the following:

Contributory negligence as a matter of law: International & G. N. R. Co. v. Edwards, 100 Tex. 22, 93 S. W. 106; Sanches v. S. A. &. A. P. R. Co., 88 Tex. 117, 30 S. W. 431; Missouri Pac. Ry. Co. v. Lee, 70 Tex. 501, 7 S. W. 857; Schaff v. Combs (Tex. Civ. App.) 194 S. W. 1159; Texas & P. R. Co. v. Johnson, 59 Tex. Civ. App. 354, 125 S. W. 933; Houston & T. C. R. Co. v. Kauffmann, 46 Tex. Civ. App. 72, 101 S. W. 817 (writ denied); Gulf, C. & S. F. R. Co. v. Gaddis (Tex. Com. App.) 208 S. W. 895; Galveston H. & S. A. R. Co. v. Price (Tex. Com. App.) 240 S. W. 524; Clements v. Hines (Tex. Civ. App.) 240 S. W. 1010; San Antonio & A. P. R. Co. v. Singletary (Tex. Civ. App.) 251 S. W. 325 (writ dismissed); Ft. Worth & D. C. R. Co. v. Bell (Tex. Civ. App.) 14 S.W. (2d) 856.

As an issue of fact: Houston Electric Co. v. McNatt (Tex. Com. App.) 11 S.W.(2d) 303; Kirksey v. Southern Traction Co., 110 Tex. 190, 217 S. W. 139; Hines v. Arrant (Tex. Civ. App.) 225 S. W. 767 (writ refused); Trochta v. M. K. & T. R. Co. (Tex. Com. App.) 218 S. W. 1038; Barron v. R. Co. (Tex. Com. App.) 249 S. W. 825; St. Louis, S. F. & T. R. Co. v. Morgan (Tex. Com. App.) 239 S. W. 607; Emberlin v. W. F., R. & Ft. W. R. Co. (Tex. Com. App.) 267 S. W. 463 (Com. App.); Freeman v. G. H. & S. A. R. Co. (Tex. Com. App.) 285 S. W. 607; Galveston H. & S. A. R. Co. v. Leifeste (Tex. Civ. App.) 8 S.W.(2d) 765.

A careful consideration of the foregoing authorities quite clearly demonstrates that there is not, and cannot be, any hard and fast rule by which the acts of an injured party or deceased may be determined to be negligence as a matter of law, or otherwise. The reason is apparent, in that the facts and circumstances of no two cases are alike, and there is no authority possessed with the power or knowledge to anticipate and determine in advance what quality of human conduct should be condemned as negligent or prudent. The more we have studied the authorities, some of which are noted above, the more we have become impressed with the pertinency of an observaton to be found in the Browder Case (Tex. Com. App.) 256 S. W. 905. It is there said: "The facts of each case are different, however slight such difference may be; but a single circumstance, inconsequential when considered alone, may be sufficient, when taken in connection with all the other facts and surrounding circumstances, to, in the minds of all reasonable persons, make negligence appear conclusive, and therefore, a matter of law, or, on the other hand to create a situation where reasonably minded persons may very properly differ in their conclusions —thus, in the latter case, presenting a question of fact, a jury question strictly, and one in which the determination of the jury must be, and has always been, held conclusive. It would be obviously impracticable to attempt such a comprehensive statement of what facts would establish `negligence as a matter of law' as to constitute either a conclusive or even substantially helpful guide in the determination of all cases presenting that bare question."

Such considerations have impressed themselves upon us as we have endeavored to weigh the facts and circumstances of this case in the light of the opinions heretofore rendered by our appellate courts in disposing of like questions. We are not unmindful of the importance of the question as it is presented in the instant case by the appellant's propositions now under consideration. However, it is not believed that it would serve any useful purpose to undertake to enter into any character of discussion of the foregoing authorities, or to presume that anything could be here added to what has already been said by the eminent jurists whose opinions have been cited. We content ourselves with an application of the principles announced heretofore to the facts of this case. In doing so we have, after a diligent study of the facts and circumstances of the case, concluded that upon the testimony as a whole we would not be justified in holding that the deceased, in his approach to the railway track and at the time he met his death, exercised no care whatever for his safety, and was guilty of contributory negligence as a matter of law. Negligence on the part of the deceased is not the inevitable conclusion to be drawn from the facts and circumstances attending and immediately preceding this tragedy. Reasonable minds, we believe, would differ upon this question, therefore demonstrating it to be a proper issue to be submitted to the jury.

In view of the fact that this case will be reversed on other grounds, it is not believed that it is necessary or even proper to set out the testimony in detail and express any further opinion in reference thereto. The testimony on another trial may differ in material respects, and any further observations made upon the same as it appears in this record would be immaterial. Appellant's propositions 1 and 2 are overruled.

By its third proposition appellant complains that its various grounds of contributory negligence were improperly submitted. The appellant seasonably objected to the manner and form of the submission of these grounds of negligence, and in addition to such objections prepared and submitted to the court appropriate issues designed to present to the jury each group of facts relied on by the defendant to defeat plaintiffs' cause of action. The objectionable issue submitted by the court was as follows: "Special Issue No. 5: Was the deceased Miller Sageser guilty of contributory negligence as that term is herein defined, in either or in all of the instances pleaded by the defendant, viz: in failing to keep a proper look-out for the approach of the defendant's train at the time and place of the collision in question, or in failing to listen for the approach of the train and for the signals of the whistle and bell, or in failing to stop the car he was operating and to look and listen for the approach of the train before attempting to cross the defendant's track, or in driving upon the right of way of the defendant and across its track at a reckless or negligent rate of speed, if he did so in either event?"

This issue was answered in the negative by the jury. The defendant objected to the manner and form of the submission of said issue, for the reason that in one question several separate and distinct issues were submitted...