Galveston, H. & H. R. Co. v. Sloman

• Decision Date: 13 March 1917
• Docket Number: (No. 7359.)
• Citation: 195 S.W. 321
• Parties: GALVESTON, H. & H. R. CO. v. SLOMAN et ux.
• Court: Texas Court of Appeals

195 S.W. 321

GALVESTON, H. & H. R. CO. v. SLOMAN et ux.

(No. 7359.)

Court of Civil Appeals of Texas. Galveston.

March 13, 1917.

Rehearing Denied May 3, 1917.

Appeal from District Court, Galveston County; Clay S. Briggs, Judge.

Action by Charles W. Sloman and wife against the Galveston, Houston & Henderson Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

John L. Darrouzet, of Galveston, and Jno. T. Garrison, of Houston, for appellant. F. Spencer Stubbs, Marion J. Levy, and James B. & Charles J. Stubbs, all of Galveston, for appellees.

GRAVES, J.

This is an appeal properly perfected and presented here by the Galveston, Houston & Henderson Railroad Company from a judgment of the Tenth district court of Galveston county, Tex., entered November 4, 1915, against it in favor of Charles W. Sloman and his wife, Sarah Jane Sloman, who were the parents of Wiley W. Sloman, deceased, separately for $3,750 each, awarded them as damages for the loss of pecuniary benefits alleged to have been reasonably expected by each of them from their said son, who had been struck and killed on November 23, 1913, by one of appellant's locomotives, operated by its employés, at a public crossing of its railroad by the public road from Texas City to Galveston, at a point between La Marque and Texas City Junction. At the time of the accident said Wiley W. Sloman was driving an automobile along said public road, both the automobile and the locomotive moving in the same direction towards Galveston, and the two collided at the point stated; the automobile being wrecked and said Wiley W. Sloman killed.

The public road along which the automobile was traveling ran almost parallel with the railroad to a point about 60 feet opposite said crossing, where it turned almost at right angles across the railroad; but there was a dirt road which continued south toward Texas City, likewise practically parallel to the railroad from this point or corner, from which the other public road, which was a shell road, turned, as stated, to cross the railroad; in other words, the public road, which, north of this turning point therein, practically paralleled the railroad and was of shell, continued from the point likewise practically parallel to the railroad on down toward Texas City, but was of dirt from almost said turning point on south.

The pleadings upon both sides contained many charges and countercharges of negligence and contributory negligence; but the case was submitted by the court to a jury upon special issues, which embodied the question of discovered peril only, these issues, with the jury's answers thereto, being as follows:

Special issue No. 1: "Did the defendant's servants in charge of the engine that was in collision with the automobile discover the danger of Wiley W. Sloman and realize the peril of Wiley W. Sloman in time to have avoided such collision in the exercise of ordinary care?" To which the jury answered: "Yes."

Special Issue No. 2: "If you answer the foregoing question in the affirmative — that is, `Yes' —but not otherwise, you will then answer the following: What damages have been sustained by plaintiff, Charles W. Sloman, and Sarah J. Sloman? In this connection you are instructed that no recovery can be had for mental grief or agony, and that you can only assess such damages as you may believe from the evidence as will be equal to the present money value (if paid now all at one time) of such pecuniary aid as plaintiffs had a reasonable expectation of receiving from the deceased, Wiley W. Sloman, if he had lived." To which the jury answered: "We, the jury, find for Charles W. Sloman damages in the sum of $3,750, and in favor of Sarah J. Sloman in the sum of $3,750."

Special Issue No. 4. "Ascertain and determine from the evidence where the deceased, Wiley W. Sloman, was when the engineer or fireman realized or discovered that the deceased, Wiley W. Sloman, would attempt to cross the track." To which the jury answered: "Approximately 156 feet from the locomotive when auto attempted to turn at crossing."

Special issue No. 7: "Ascertain and determine from the evidence if the engineer or fireman realized or discovered that the deceased Wiley W. Sloman, was in imminent danger or was going to attempt to cross the track in front of the train before the said deceased, Wiley W. Sloman, turned to the right at said crossing." To which the jury answered: "Yes."

Special Issue No. 8: "Ascertain and determine from the evidence if, just at and before the time of the accident, Wiley W. Sloman was trying to reach the crossing and pass over the same before the train could reach the crossing." To which the jury answered: "Yes."

Under its nineteenth assignment appellant contends that this issue of discovered peril, thus alone submitted to the jury, was not raised by the pleadings of plaintiff, and hence its submission was unauthorized.

This contention is without merit, because paragraph 12, together with several other related parts of the trial petition, among them paragraphs 5, 7, and 11, while not as full and specific as they might have been, did, in our opinion, both put in issue, and, upon the evidence thereunder presented, properly invoke the application of the doctrine of discovered peril; all reasonable inferences from the facts alleged in the pleadings as a whole should be made in aid thereof. Brackenridge v. Claridge, 42 S. W. 1005; Ins. Co. v. Woodward, 18 Tex. Civ. App. 496, 45 S. W. 185; Canal Co. v. Sims, 82 S. W. 531; Ry. Co. v. Kelly, 83 S. W. 855; Ry. Co. v. Rollins, 89 S. W. 1099; Landrum v. Stewart, 111 S. W. 769; Ramon v. Saenz, 122 S. W. 928; Sievert v. Underwood, 58 Tex. Civ. App. 421, 124 S. W. 721; Ball v. Water Corporation, 127 S. W. 1068; Trezevant & Cochran v. Powell & Co., 61 Tex. Civ. App. 449, 130 S. W. 234; Ry. Co. v. Gilbert, 130 S. W. 1037; Mack v. Ry. Co., 134 S. W. 846; Walker & Sons v. Fisk, 136 S. W. 101; Shelton v. Cain, 136 S. W. 1155; Gibbens v. Bourland, 145 S. W. 274; Lumber & Creosoting Co. v. Maris, 151 S. W. 325; Hoechten v. Standard Home Co., 157 S. W. 1191.

Indeed, we agree with the trial court that the issue of discovered peril became the only applicable one to the developed facts of the case. That being so, not only did the court commit no error in submitting it alone, but would have reversibly erred had it done anything else.

This conclusion logically negatives appellant's persistent contention throughout its brief that the court found it guiltless, and deceased, Wiley W. Sloman, correspondingly guilty, of negligence. Such is not at all the necessary effect of the court's action. It merely held that, in the manner and sense next hereinafter discussed, the negligence of both participants in this fatal collision faded into nothingness upon the intervening of Sloman's discovered peril, and yielded its place to the new duties imposed by that condition and situation, and the fresh obligations upon appellant the law at once read into it.

What were these new duties? To use the means then reasonably at hand or within its power to prevent the collision and the consequent killing of Sloman.

Did appellant do this, did it meet this new duty, and, if not, does it further reasonably appear that, had it done so, the collision could, and probably would, have been avoided? The record does not vouchsafe us this information, and, because it does not, this cause must be reversed.

Likewise, and for the same reason, must fall the contention of appellant that it was entitled to a peremptory instruction to find for it, because of its claim that no act of negligence furnishing the direct and proximate cause of the injuries was shown against it. The fallacy in this position is that, the issue of discovered peril having intervened, in fact supervened, as the trial court rightly held it had, all issues of original negligence as such—that is, as the independent basis of any liability, or the freedom from it—became in a sense immaterial; and the new duty arising out of the doctrine of discovered peril took its place. These closely related doctrines of negligence and discovered peril have perhaps been sometimes confused, but we think the legal effect of the latter is clearly stated in the plain Anglo-Saxon words of Judge Denman, speaking for our Supreme Court in Railway Co. v. Breadow, 90 Tex. 30, 36 S. W. 412, as follows:

"If defendant, through the parties in charge of the engine, knew of Breadow's peril in time to have avoided same, such knowledge imposed upon it the new duty of using every means then within its power, consistent with the safety of the engine, to avoid running him down, and a failure so to do would render it liable, notwithstanding he may have been guilty of contributory negligence in being exposed to the peril. This new duty and liability for its breach is imposed, upon principles of humanity and public policy, to prevent what would otherwise be, as far as civil liability is concerned, the licensed destruction of persons negligently exposing themselves to peril. The same principle of law which, on grounds of public policy, will not permit a person to recover when his own negligence has proximately contributed to the injury, will not permit the party who has inflicted the injury in violation of such new duty to defend upon the ground of such negligence."

To the same effect are Ry. Co. v. Jacobson, 28 Tex. Civ. App. 150, 66 S. W. 1114; Ry. Co. v. Reynolds, 103 Tex. 36, 122 S. W. 531; Sanches v. Ry. Co., 88 Tex. 120, 30 S. W. 431; Higginbotham v. Gulf, C. & Santa Fé R. Co., 155 S. W. 1027; Ry. Co. v. Munn, 46 Tex. Civ. App. 276, 102 S. W. 442; Ry. Co. v. Hanna, 34 Tex. Civ. App. 608, 79 S. W. 639; Ry. Co. v. Wear, 33 Tex. Civ. App. 492, 77 S. W. 272; Gehring v. Elec. Co., 134 S. W. 291.

Manifestly these considerations also obviate a discussion of all those assignments in the briefs of both parties here relating to their negligence and contributory...