Ft. Worth & D. C. Ry. Co. v. Looney

• Decision Date: 22 June 1951
• Docket Number: No. 15257,15257
• Citation: 241 S.W.2d 322
• Parties: FT. WORTH & DENVER CITY RY. CO. v. LOONEY et al.
• Court: Texas Court of Appeals

Page 322

241 S.W.2d 322

FT. WORTH & DENVER CITY RY. CO. v. LOONEY et al.

No. 15257.

Court of Civil Appeals of Texas, Fort Worth.

June 22, 1951.

Rehearing Denied July 20, 1951.

Seth Barwise, Fort Worth Donley Suddath, Henrietta, H. M. Muse, Wichita Falls, for appellant.

Stine & Stine, Henrietta, for appellee.

RENFRO, Justice.

On March 8, 1949, a passenger car driven by Don Massey collided with a standing freight train at the crossing of the Ft. Worth & Denver City Railway tracks and Highway No. 148, just inside of the city limits of Henrietta, Texas. The plaintiffs, L. C. Looney, Lee Palacios, Jr., and La Marylis Gibson, were riding in the car with Don Massey and sustained injuries as a result of the accident. This suit was filed by L. C. Looney, a minor by his next friend, W. A. Looney, and Lee Palacios, Sr., and Lee Palacio, Jr., a minor, by Lee Palacios, Sr., as next friend and La Marylis Gibson, a minor, by her next friend, Jimmie Gibson, as plaintiffs against the Ft. Worth & Denver City Railway Company as defendant, hereinafter called appellant, in the district court of Clay County, Texas. Plaintiffs alleged that the railway crossing where such accident occurred was more than an ordinarily dangerous crossing, and that the defendant was negligent in not having in operation an automatic audible warning device, an automatic lighting device, in not having a flagman at such crossing and in not having such crossing lighted to reveal the presence of a train at such crossing and alleged that each of such acts were negligence and a proximate cause of the injuries sustained by the minor plaintiffs. The appellant specifically denied such allegations of negligence and specifically denied that the crossing in question was more than an ordinarily dangerous crossing and further alleged that the driver of the car failed to keep a proper lookout and that he was driving at an excessive rate of speed and that such speed was negligence and a proximate cause of the accident, and further alleged that the driver of the car and the plaintiffs were on a joint enterprise and that the negligence of the driver was imputed to the plaintiffs.

The jury found that the crossing in question was more than an ordinarily dangerous nighttime crossing; that the same was known by the defendant to be more than an ordinarily dangerous nighttime crossing and by the exercise of ordinary care would have known that it was more than an ordinarily dangerous crossing and that appellant was guilty of negligence in failing to have the crossing lighted, in failing to have an automatic warning device at the crossing and in failing to have a flagman at the crossing, and that each of said acts of negligence was a proximate cause of the injuries to the plaintiffs. The jury further found that the driver of the automobile failed to keep a proper lookout which was a proximate cause of the accident in question, and that the speed at which he was driving the car was negligence and a proximate cause of the collision. Based upon the jury's verdict, judgment was entered for the plaintiffs and appellant has appealed to this court.

The appellant contends in his first point that there was no evidence of probative force that the crossing was more than an ordinarily dangerous crossing and for such reason there was no disputed issues of fact to submit to the jury concerning such crossing.

The evidence introduced by the plaintiffs show that the city of Henrietta is built on a high hill. One of its streets runs straight south until it reaches the Katy railroad and continues south to the crossing of the Ft. Worth & Denver Railroad and for several hundred feet beyond. There are houses along the sides of the street north of the Katy railroad and there are street lights at street intersections and these street lights are so spaced as to be at different elevations, as the level of the street drops going toward the south. One approaching the appellant's tracks going north, as were the plaintiffs, can see the street lights as he travels up an incline from a low place south of the appellant's tracks and these lights appear over the top of the rails and a person facing north can see the street lights under the train. The appellant's tracks are on the top of a slight elevation and immediately north of appellant's tracks the elevation is somewhat lower and the lights of automobiles traveling south can be seen under the train by occupants of the automobiles traveling north, and a glow from the city lights of Henrietta appears over the trains on the track; that these circumstances, coupled with the fact that there is an incline on the highway as one approaches the tracks from the south, causes the lights to shine on the pavement and over the rails and under the train in such a manner as to give an illusion to a person traveling north that there is nothing ahead except open road. Numerous witnesses testified to these conditions. Witness Dugger, for instance, testified that he had traveled that highway since 1905. That he has crossed the railroad tracks numerous times, both day and night, and in all kinds of weather and on 'moonlight nights and dark nights and medium nights and various kinds of nights.' That he has approached it when trains were on the track and that when you approached the crossing, coming up the incline going north, you can look over the rails and under the train and see the lights from the town of Henrietta; that the lights of the town make it appear that there is no train on the track and that lights shining from the other side of the track will make it appear that there is no train. Substantially the same testimony was given by fifteen or more witnesses. The case of Missouri, K. & T. R. Co. of Texas v. Long, Tex.Civ.App., 293 S.W. 184, is somewhat similar to the case at bar. In that case the evidence showed that as the driver of the automobile approached the crossing there were various electric lights in the city of Temple, such as porch lights and street lights which continually burn at night and which are directly faced by an automobile driver immediately upon making his turn to the west, so he cannot see standing trains. The Long case was appealed to the Supreme Court and in 299 S.W. 854, 855, and in opinion by the Commission of Appeals approved by the Supreme Court, the court held that 'an extraordinary place of danger as a place so peculiarly dangerous that prudent persons cannot use the same with safety, unless extraordinary means are used to protect such place.' The case was reversed because the trial court had failed to define properly 'more than ordinarily dangerous is a crossing'. The Long case was again appealed after subsequent trial and in Missouri, K. & T. R. Co. of Texas v. Long, Tex.Civ.App., 23 S.W.2d 401 (error refused), the court upheld a judgment for plaintiff, the court holding that the evidence was properly and rightfully considered by the jury. In Beaumont, S. L. & W. R. Co. v. Richmond, Tex.Civ.App., 78 S.W.2d 232, the accident occurred as the plaintiff was approaching the town of Sour Lake. The facts are similar to facts in this case. The court held the evidence sufficient to uphold a jury finding of hazardous crossing.

In the case Gulf, C. & S. F. Ry. Co. v. Picard, Tex.Civ.App., 147 S.W.2d 303 (error dismissed), plaintiff was riding in an automobile and collided with a gondola car stopped on the highway at night. The court held that the evidence was sufficient to warrant submission of special issue as to whether conditions surrounding the crossing at the time of the accident were such to render the crossing more than ordinarily dangerous. See also St. Louis, B. & M. Ry. Co. v. Brack, Tex.Civ.App., 102 S.W.2d 261; Texas & N. O. R. Co. v. Davis, Tex.Civ.App., 210 S.W.2d 195 (refused NRE). We believe that in light of the authorities cited the evidence offered by the plaintiff was sufficient to uphold the jury finding that the crossing in question was more than ordinarily dangerous and we hereby overrule appellant's contention.

Appellant's third point is rather long, but is substance contends that the jury having found that the driver of the car was guilty of contributory negligence; that such negligence is imputed to the plaintiffs, appellant's contention being that plaintiffs and the driver of the car were on a joint enterprise.

No issues of negligence were requested or submitted to the jury as to the plaintiffs.

According to the record, Don Massey and Richard Massey, brothers, borrowed their father's automobile to go from their home in the northern part of Clay County to a basketball game at Midway in the southern part of the county. After leaving home, they picked up the three plaintiffs and another boy. The owner of the car, father of the Massey boys, testified that he loaned the car to his sons and that he did not care which one drove. That nothing was said about anyone other than his sons driving the car or having the car, and that he did not talk to any of the other young people. The other young people were, as stated, picked up after the Massey boys left home. The record is silent as to whether the father of the Massey boys knew whether anyone other than his sons were going. Don, the younger brother, and L. C. Looney and Lee Palacios were members of the same basketball team and La Marylis Gibson was a guest of Richard Massey. Richard Massey drove the car to Midway and after the basketball game was over, Don started to drive home, and was driving at the time of the unfortunate accident. The record shows that Don had been driving an automobile since he was seven or eight years old, and had never had an accident of any kind. The older brother, Richard, also was an experienced driver. Nothing was said by any of the plaintiffs about whether they had any right to operate the automobile and none of the plaintiffs attempted to have anything to do with the driving of the automobile and no one other than Don and his brother...