Galveston, H. & S. A. Ry. Co. v. Price

• Decision Date: 10 May 1922
• Docket Number: (No. 273-3505.)
• Citation: Galveston, H. & S. A. Ry. Co. v. Price, 240 S.W. 524 (Tex. 1922)
• Parties: GALVESTON, H. & S. A. RY. CO. v. PRICE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

240 S.W. 524

GALVESTON, H. & S. A. RY. CO. v. PRICE.^*

(No. 273-3505.)

Commission of Appeals of Texas, Section B.

May 10, 1922.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by M. S. Price against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment (222 S. W. 628), affirming a judgment for plaintiff, defendant brings error. Reversed and rendered.

Page & Jones, of Bastrop, and M. O. Flowers, of Lockhart, for plaintiff in error.

E. B. Coopwood and Nye H. Clark, both of Lockhart, for defendant in error.

McCLENDON, P. J.

About 5 o'clock in the afternoon of Saturday, October 5, 1918, W. T. Price while in the act of crossing the main track of the Galveston, Harrisburg & San Antonio Railway Company, at its intersection with Sixth avenue in the town of Luling, was run over and killed by one of defendant's trains. This suit was brought by his widow, Mrs. M. S. Price, to recover from the railway company compensatory damages for his death. The Court of Civil Appeals affirmed a judgment of the trial court in favor of Mrs. Price rendered upon a special issue verdict. 222 S. W. 628.

There are but two questions presented for decision. The first is whether W. T. Price was guilty of contributory negligence as a matter of law in stepping in front of a moving train. If this question is answered in the affirmative, then it is contended by defendant in error that the trial court's judgment must nevertheless be sustained upon the ground that the evidence will support a finding for plaintiff upon the issue of discovered peril, and that, since that issue was not submitted to the jury, it must be presumed as having been found by the trial judge in favor of plaintiff.

The facts in the case which control the issues presented are simple. Sixth avenue, which is the principal street in the town of Luling, runs north and south, and intersects defendant's railway practically at right angles. The main business portion of the town is just north of the railroad, and a number of residences are to the south, among them that of Mr. Price. At this point of intersection three tracks of defendant company cross Sixth avenue, a switch track on the north, the main track in the center, and about 12 or 15 feet south of the north switch track, and another switch track to the south. The freight depot appears to be north of the north track, and immediately to the east of Sixth avenue. There is a graded gravel sidewalk on the west side of Sixth avenue, which furnishes the ordinary route taken by pedestrians in crossing the railroad track. There is no sidewalk on the east side of the roadway on Sixth avenue, and that portion of the street is rarely used by pedestrians. A few feet west of the gravel sidewalk is a switch target, operating a switch on the main line. The train which killed Mr. Price was a freight which had reached Luling a very short while before the accident. It was on the main track, and bound west. In front of the engine was a coal car, and behind the engine a number of box cars. The train was being operated by a conductor, engineer, fireman, and two brakemen. At the time of the accident, the conductor was at the freight depot, and did not see the accident. The fireman was on the left-hand side of the engine and the engineer on the right. The brakemen were swinging on the cars on the left or south side of the train, which was moving slowly in a westerly direction at the time it crossed Sixth avenue. No one except the engineer was in a position to have seen Mr. Price, who was on foot and crossing from the north to the south side of the track on the gravel sidewalk. But one witness saw Mr. Price before the train struck him. She was immediately south of the main track on the gravel sidewalk coming north. Her testimony is to the effect that Mr. Price at the time he approached the crossing was reading a paper, and that he walked right on to the main track, stepping over the north rail just about the instant the coal car struck him. There was another witness who was some 200 feet in a southwesterly direction from the point of the accident. He did not see Mr. Price until the very moment he was struck by the coal car. He at once ran toward the train, waiving his hat and calling to the train crew. He finally attracted the attention of one of the brakemen, who gave a signal to the fireman, and he in turn to the engineer, and the train was then stopped, but not until after it had passed a little beyond a frog situated some 70 feet to the west of the switch target. It appears that Mr. Price's clothes were caught by the cowcatcher of the engine, and he was dragged along the track to this frog, where his body was very badly mutilated. It seems quite clear from the evidence that none of the train crew knew anything about the accident until the brakeman heard the warning referred to. The engineer, while in a position to have seen Mr. Price, testified that he was probably at that time looking in the direction of the fireman for the purpose of getting signals.

The above facts are shown either by the undisputed evidence or by specific findings of the jury. There is a sharp conflict in the evidence between the train crew, on the one hand, and all the other witnesses testifying upon the point, on the other, as to where the train was when Mr. Price was struck. The crew all testified that the train had been stopped when the coal car was to the west of Sixth avenue before the accident occurred, and that the train proceeded from that point in a westerly direction until the crew received the warning that an accident had happened. This theory, however, must be rejected in the light of the specific jury finding that Mr. Price was at the crossing on Sixth avenue when he was struck. The jury found that defendant's agents in charge of the train were negligent in not ringing the bell, and in that they did not "keep a lookout ahead of said train, in passing over the public street crossing where it is alleged said W. T. Price was killed, to see that no one was on said crossing and in danger of being injured by said train"; and that if they had done so they could, by the exercise of ordinary care, have discovered him in time to have prevented killing him; and that this negligence was the direct and proximate cause of Mr. Price's death. They also found that Mr. Price was not guilty of contributory negligence. In answer to specific questions they found that Mr. Price did not stop, look, or listen for the train before entering upon the track; that the coal car and engine were moving at the time he entered upon the track; that his view of the train was unobstructed, and that he stepped immediately in front of said car and engine; that the train and engine were not stationary on the street crossing, and did not move forward just prior to the accident.

The uncontradicted evidence and the specific findings of the jury present a clear case of a pedestrian stepping in front of a slowly moving train under circumstances which present no excuse for his not discovering it.

The contention of defendant in error that Mr. Price was not guilty of contributory negligence as a matter of law is based upon the repeated holdings of our Supreme Court to the effect that the law does not prescribe any particular acts or omissions as constituting ordinary care or its absence; that in accordance with this rule it is not negligence as a matter of law for one about to cross a railroad track not to stop, look, or listen, and that whether a failure to do so in a particular instance constitutes a failure to exercise ordinary care is usually a question of fact to be determined by a jury.

In Ferrell v. Traction Co., 235 S. W. 531, this section of the Commission said:

"There have been many cases brought before the Supreme Court in which the plaintiff who came in contact with a moving car or train has been sought to be held guilty of contributory negligence as a matter of law, but, except in those cases where there has been a violation of some statute or city ordinance, or a disregard of some warning or known regulation provided for the safety of the injured party, or where there has been a voluntary exposure to a known danger, the cases which have held that there was negligence as a matter of law have been exceedingly rare. The general doctrine announced by our Supreme Court is that negligence and contributory negligence are questions of fact for the jury. They can only become questions of law when the facts and circumstances are such that but one reasonable conclusion can be drawn therefrom."

Among the recent decisions adhering to the rule that contributory negligence is ordinarily a question of fact for the jury, and that it is not negligence per se not to stop, look, or listen, or to fail to observe any particular precaution, are the following: Kirksey v. Southern Traction Co., 110 Tex. 190, 217 S. W. 139; Trotchta v. Railway (Tex. Com. App.) 218 S. W. 1038; Railway v. Harrington (Tex. Com. App.) 235 S. W. 188. We do not think it necessary to review the facts in those cases, nor of the many other cases, in which the same doctrine is adhered to. The effect of all of these decisions is the same, namely, that, unless but one reasonable conclusion can be drawn from the evidence, the question whether there has been negligence or contributory negligence is a question of fact to be determined by a jury. We also cite Railway v. Barron (Tex. Civ. App.) 235 S. W. 335, for its extended review of the Texas decisions upon this subject. We express no opinion, however, upon the correctness of the particular decision in that case, since it is now pending in the Supreme Court. We do not regard any of the decisions of our Supreme Court as in any way trenching upon the rule that negligence and contributory negligence do become questions of law, when but one reasonable conclusion can be drawn from the facts and circumstances of the case.

The specific question...