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

• Court: Texas Court of Appeals
• Writing for the Court: Gallagher
• Citation: Fort Worth & R. G. Ry. Co. v. Sageser, 37 S.W.2d 826 (Tex. App. 1931)
• Decision Date: 02 April 1931
• Docket Number: No. 1041.,1041.
• Parties: FORT WORTH & R. G. RY. CO. v. SAGESER et al.

Page 826

37 S.W.2d 826

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

No. 1041.

Court of Civil Appeals of Texas. Waco.

April 2, 1931.

Appeal from District Court, Erath County; Sam M. Russell, Judge.

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

Reversed and remanded.

Goree, Odell & Allen and Hiner & Pannill, all of Fort Worth, E. T. Miller, of St. Louis, Mo., and Chandler & Keith, of Stephenville, for appellant.

Oxford & Johnson, of Stephenville, for appellees.

GALLAGHER, C. J.

This suit was instituted by Mrs. Gladys Sageser, for herself and as next friend for her minor child, Miller Marie Sageser, appellees herein, against Fort Worth & Rio Grande Railway Company, appellant herein, to recover damages sustained by them from the death of Miller Sageser, husband and father of the respective appellees. A prior judgment in their favor was reversed by the Court of Civil Appeals at Eastland. 18 S.W.(2d) 246.

King street in the city of Stephenville ran approximately north and south. It crossed appellant's railroad at right angles in the suburbs of the city. The deceased, Miller Sageser, on the morning of December 7, 1927, was traveling south along said street. He was driving a Ford touring car. As he passed over the railroad crossing, the rear end of his car was struck by an east-bound passenger train, and he received injuries which resulted in his death a short time thereafter.

The case was submitted to a jury on special issues, in response to which it found, in substance, that said train at the time it approached and passed said crossing was being operated at a speed of 35 miles per hour; that such speed at the time and place and under all the circumstances in evidence constituted negligence, and that such negligence was the proximate cause of the death of the deceased; that Mrs. Sageser sustained damages by reason of the death of her husband in the sum of $6,000, and the minor child, Miller Marie Sageser, sustained damages by reason of the death of her father in the sum of $3,000. The jury further found that said collision was not the result of an unavoidable accident, and against appellant's contention on all the issues of contributory negligence submitted. The court rendered judgment in favor of appellees on said verdict, and appellant presents the record to this court for review.

Opinion.

Appellant presents as ground for reversal the refusal of the court to submit to the jury for determination the following issues requested by it:

"Requested issue No. 11: Was the deceased, Miller Sageser, negligent, as that term has been defined to you, in driving his automobile on said railroad track in front of defendant's train at the time and place and under the circumstances in which said deceased did drive the same on to defendant's track at the time of the accident in question? Answer Yes or No.

"Requested issue No. 11a: If you answer the foregoing special issue in the affirmative, then answer the following:

"Was such negligence, if any, a proximate cause of the death of the said Miller Sageser? Answer Yes or No just as you find."

The testimony showed that King street was much traveled; that the view to the westward of one traveling south thereon was obstructed for the distance of about a block immediately before reaching the crossing over appellant's railroad; that a full view of a...