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

• Decision Date: 23 June 1922
• Docket Number: (No. 8195.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: GALVESTON, H. & H. R. CO. v. SLOMAN et ux.
• Court: Texas Court of Appeals

244 S.W. 268

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

(No. 8195.)^*

Court of Civil Appeals of Texas. Galveston.

June 23, 1922.

Rehearing Denied October 5, 1922.

Appeal from District Court, Galveston County; J. C. Canty, Judge.

Action by Charles W. Sloman and wife against the Galveston, Houston & Henderson Railroad Company. Judgment for plaintiffs, and defendant appeals. Reversed and rendered.

John L. Darrouzet, of Galveston, and Garrison, Pollard & Berry, and Baker, Botts, Parker & Garwood, all of Houston, for appellant.

James B. & Charles J. Stubbs, and F. Spencer Stubbs, all of Galveston, for appellees.

LANE, J.

The opinion on a former appeal of this case is reported in 195 S. W. 322. A statement of the case as last tried is as follows:

"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 April 27, 1921, against it in favor of Charles W. Sloman and his wife, Sarah Jane Sloman, who were the parents of Wiley W. Sloman, deceased, jointly for $7,500, awarded them as damages for the loss of pecuniary benefits alleged to have been reasonably expected by them from their said son, who had been struck and killed on November 23, 1913, by one of appellant's locomotives, operated by its employees, at a public crossing of its railroad by the public road from Texas City to Galveston, at a point between La Margue 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 parallel with the railroad to a point 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."

The pleadings upon both sides at the last trial contained many charges and counter-charges 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 by the use of the means at their command? Answer: Yes.

"Special issue No. 2: At what place was the automobile driven by the deceased, Wiley Sloman, when the fireman actually discovered and realized that the deceased, Wiley Sloman, would attempt to cross the track in front of the train? Let your answer state at what place from the crossing where the accident occurred. Answer: 40 feet.

"Special issue No. 3: How far was the engine from the crossing or place of the accident when the fireman actually discovered and realized that the deceased, Wiley Sloman, would attempt to cross the track in front of the train? Answer this issue by stating the distance in number of feet. Answer: 385 feet.

"Special issue No. 4: What damages, if any, have been sustained by plaintiffs, 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 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 J. Sloman, if he had lived. Answer: $7,500.00."

Immediately following issue No. 1, the court instructed the jury as follows:

"In connection with and explanatory of this issue, you are instructed that the burden of proof is upon the plaintiffs to show by preponderance of the evidence that the engineer or fireman actually discovered the peril of the deceased in time, by the exercise of ordinary care, with all the means at their command, consistent with the safety of the train or its passengers, to have prevented the accident.

"You are further instructed, that the fireman and engineer operating the train in question in law had the right to presume that a party approaching a railroad crossing where his view was unobstructed would not attempt to cross in close proximity to or in front of a moving train, and no duty would rest upon the engineer or fireman to give any warning of the approach of said train until it reasonably became apparent to them that the deceased, Wiley Sloman, would attempt to cross the track in front of said train."

We agree with the trial court that the issue of discovered peril became the only one applicable to the developed facts of the case.

The only issues presented for our decision are: First, did the operatives of the train discover the peril of the deceased, Wiley Sloman, in time to prevent the collision, which resulted in his death, by the use of the means then reasonably at their command? and second, if such discovery was made, did said operatives thereafter use ordinary care to put in use all the means then reasonably at their command to prevent the collision?

As already shown, the jury, in answer to special issues submitted, found that the fireman on the locomotive actually discovered and realized that the deceased, Wiley Sloman, would attempt to cross the railroad track in front of the approaching train at the time Sloman was 40 feet from the point of the collision; that at the same time the locomotive was 385 feet from said point, and that after the discovery by the fireman that Sloman would probably attempt to cross the track in front of the locomotive, the operatives in charge thereof could have avoided the collision in the exercise of ordinary care to use and by the use of the means at their command.

Appellant challenges the findings of the jury in that — (1) There was no evidence showing that the operatives of the locomotive, after the discovery of the peril of the deceased, Wiley Sloman, if there was such discovery, could, with the means at their command, have prevented the collision; (2) in that there is no evidence to support the findings of the jury that at the time the peril of the deceased was discovered the locomotive was 385 feet from the point of collision, and that the automobile driven by the deceased was only 40 feet therefrom, and in that such finding is against the great weight and preponderance of the evidence.

Appellant contends that the undisputed evidence shows that the train was running at a rate of speed of not less than 40 miles an hour, and that the lowest speed placed upon the automobile by any witness was 10 miles an hour, and as it was thus shown that the train was traveling at least four times as fast as the automobile, it is apparent that the automobile would have passed the point of collision and been 50 feet beyond it before the train reached said point, and that in such circumstances the collision could not have occurred.

After a careful review of all the evidence the majority of this court have reached the conclusion that the contention of the appellant should be sustained. If, as contended by appellant, the evidence shows that after the automobile turned to make the crossing it was running at a rate of speed of not less than 10 miles an hour, and we think it does, then it is clearly demonstrated that the collision could not have occurred, had the findings of the jury that at the time the automobile was only 40-feet from the point of collision and the train was 385 feet therefrom been correct.

Upon the issue of discovered peril the burden was upon the appellee to show: First, that the peril of the deceased was discovered by the operatives of the locomotive which collided with the automobile in which the deceased was riding; and, second, that after such discovery said operatives could, in the exercise of ordinary care, have prevented the collision. Has appellee met this burden?

The facts and evidence bearing upon the issue of discovered peril was substantially as follows: The public road along which the automobile occupied by the deceased was traveling is situated about 60 feet east from the railroad track of the appellant, and runs parallel therewith for a distance of several miles. At a point directly east of the crossing, where the collision in question occurred, one branch, the main branch thereof, which leads to the city of Galveston, turns west almost at right angles and crosses the railway track of appellant. Another branch, leading to Texas City, turns at the point last mentioned eastward at about an angle of 35 degrees. Both the train and the automobile were approaching the crossing where the collision occurred from the north. The approaching train could have been seen by any one at or near the crossing for a mile or more. As the automobile was traveling along the road parallel with the railroad, and before it made the turn to cross the railroad it was traveling, as shown by the various witnesses, from 20 to 50 miles an hour, some witnesses placing its speed as low as 18 to 25 miles per hour, and others as high as 50 miles. As the train approached the crossing it gave the usual whistle at the whistling post, 440 yards from said crossing. It is conceded, as well as being manifest from the undisputed facts, that the operatives of the locomotive had no reason to anticipate that the deceased was in peril until he had turned to the right at about 40 feet from the point of collision.

That portion of the testimony of the several...