Galveston H. & S. A. Ry. Co. v. Wells

• Decision Date: 21 April 1932
• Docket Number: No. 5425.,5425.
• Citation: 50 S.W.2d 247
• Parties: GALVESTON H. & S. A. RY. CO. v. WELLS et al.
• Court: Texas Supreme Court

Page 247

50 S.W.2d 247

GALVESTON H. & S. A. RY. CO. v. WELLS et al.

No. 5425.

Supreme Court of Texas.

April 21, 1932.

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

Action by Mrs. Annie L. Wells, individually and as next friend of Ray M. Wells, Jr., a minor, and others against the Galveston, Harrisburg & San Antonio Railway Company. A judgment for plaintiffs was affirmed by the Court of Civil Appeals , and defendant brings error.

Affirmed.

Proctor, Vandenberge, Crain & Vandenberge, of Victoria, Baker, Botts, Parker & Garwood, of Houston, and Peareson & Peareson, of Richmond, for plaintiff in error.

Morris, Sewell & Morris, C. I. McFarlane, B. C. Clark, and W. J. Knight, all of Houston, and Black & Graves, of Austin, for defendants in error.

PIERSON, J.

Mrs. Annie L. Wells, for her own benefit and as next friend of and for the benefit of her minor son, Ray M. Wells, Jr., instituted this suit in the district court of Ft. Bend county against the Galveston, Harrisburg & San Antonio Railway Company for recovery of damages in the sum of $100,000 by reason of the death of her husband, Ray M. Wells, in a collision at a public road crossing in Ft. Bend county on October 25, 1926, between a train and an automobile driven by the deceased, Wells. It was alleged that the deceased, Wells, was an employee of the Gulf Production Company, a subscriber holding a policy of compensation insurance issued by the Gulf Casualty Company.

The deceased's father and mother were made parties to the suit, but they disclaimed any recovery to which they might be entitled. The Gulf Casualty Company was also made a party because of its right of subrogation to the extent of the amount of insurance assumed by it and awarded by the Industrial Accident Board.

The railway company answered by general demurrer, special exceptions, general denial, plea of contributory negligence on the part of the deceased, and that the train which collided with the deceased's automobile was engaged in, and was an instrumentality of, interstate commerce, of which the Congress of the United States had assumed control through the Interstate Commerce Act, the Transportation Act of 1920, the Federal Employers' Liability Act, the Federal Safety Appliance Act, and through the Interstate Commerce Commission Act and amendments thereto; that, by reason of the federal laws, any judgment recovered would be a burden on interstate commerce, and further that, by reason of the federal laws and the decisions of the Supreme Court of the United States, the alleged negligence of Wells constituted a complete bar to any right of recovery by his widow and child.

The testimony shows that the train in question which struck Wells was an interstate train operated between New Orleans and San Francisco. It was scheduled to leave Houston on the day in question at 10:30 a. m., and left that point five minutes late. It reached Missouri City about three minutes late. Missouri City, where Wells was struck, is situated about 15 miles west of Houston, and is not a scheduled stop for that train.

The railroad at Missouri City runs practically east and west, and in approaching Missouri City going west it is perfectly straight for a number of miles. Paralleling the railroad going into and through Missouri City is the Old Spanish Trail, a paved highway passing between the railroad and the business section of Missouri City. Just west of the station and close to it a public highway crosses both the highway and the railroad practically at right angles. At the time of the accident, and for some time prior thereto, the Old Spanish Trail was closed for repairs between Missouri City and Houston, and traffic was detoured from this road over the dirt crossing in question. This crossing was used by school children going to and from school every day. According to the evidence, this highway at the time deceased was killed was used constantly by the public generally. It was shown that quite a number of people lived north of the railroad tracks at this point, and that in sending their children to school and in going to any point south of the railroad in the vicinity of the town the dirt road crossing the railroad was used a great deal. The testimony shows that a great amount of freight was handled at Missouri City for the use and benefit of the town and other points out of Missouri City on the south side of the railroad, including, not only the town of Missouri City, but Blue Ridge, an oil field, in which operations had been conducted for a long while, and were then being conducted by the Gulf Production Company and other large companies, and that such companies had quite a lot of freight, express, and other matters out of Missouri City, and that all traffic from the oil field, as well as other territories south of the city, had to go to the railroad station at Missouri City and return therefrom by crossing the dirt road highway just west of the railroad station.

It was further shown that the railroad company had arranged about the station house, and especially on the west and north sides thereof, parking space for the use of its customers and for trucks and wagons and persons having business with the company, and that at and about the depot building obstructions were present, and that these obstructions and the depot house cut off the view of trains approaching from the east going west, and that such trains could not be seen by persons west of the station until they had passed the station house and were close on the crossing, that a great number of passenger and freight trains passed through Missouri City each day going each way, and that many of the trains did not stop there on the regular schedule.

Some witnesses who were close by at the time of the collision testified that they were in a position to have heard the bell ringing, and yet they did not hear the bell ringing. Testimony was also introduced showing that, after the whistle was blown at the whistling post, no more whistling for the crossing was done.

It was shown that Wells had some business to transact with the station agent. After transacting this business, he left the station a short time before the train arrived, and went to his automobile parked somewhere in the rear of the station a short distance from the crossing. No witness testified to having seen Wells or the automobile after he started his car and proceeded toward the crossing, except the witness Stevenson, the engineer, who did not testify as to the rate of speed the automobile was traveling. He testified in the following language: "I knew that people might be coming from the back end of the depot over that crossing. I have seen people about there before. * * * I knew that an automobile might be coming from around over there across this crossing." He also testified that, when he saw the automobile, it was about 20 feet north of the track approaching the crossing, and it appeared to him that Wells was looking right squarely at the train. A west-bound passenger train running something like 50 miles per hour, and behind schedule time, struck the rear end of Wells' automobile as he was leaving the station going south and attempting to cross the railroad track, and knocked the automobile and deceased a great distance, killing deceased instantly. There was testimony to the effect that the train, after hitting Wells, ran 350 or 400 yards before it stopped.

Walton, the train conductor, said that the train which killed Wells had a schedule time of 38 miles per hour, but that it was late that particular day. Some other witnesses testified that it was running something like 50 miles or more per hour at the time. Harris, the general road foreman of motive power, who was riding in the engine at the time of the collision, testified that he saw the top of the automobile go by from north to south just as it came in front of the locomotive. In describing it, Harris used this language: "And just at that time the automobile slipped over the crossing just like that (indicating by a snap of the fingers)." He further testified in substance: "I would judge the weight of that train to be 800 tons, and with a train weighing that amount moving 50 miles an hour, it takes its required time with the brakes to stop it. Passing that station running 45 to 55 miles an hour and seeing a man coming on that track you couldn't stop that train in time to save him. If you saw the car in time, why, you could slow down some, or if you saw the car in time you could stop. * * * In railroad parlance, by having a train under control is meant to stop it in a reasonable distance. * * * The speed of that train was not reduced on approaching that road crossing before the collision. * * * As to whether or not it is a fact that the engineer did not have the train under control on passing that corner, I will say he was traveling at the speed—what we say is full speed. It wasn't under control, prepared to stop at any particular minute. Engine men frequently get train orders to approach a station carefully under control. No, that does not mean to approach it at 50 miles an hour."

The fireman testified that, "when I first saw the automobile it was coming from in front of the engine; the engine had just about struck it * * * and it was going away from the engine. * * * It looked to me like the automobile was going away from the engine at the time it was struck."

The evidence raised certain issues of fact to be determined. The cause was submitted to a jury, who found, in answer to special issues, that the train operatives, upon approaching the crossing, did not begin ringing the bell at least 80 rods from the crossing, and did not continue to ring same until the crossing was reached, and that such failure was a proximate cause of the collision and death of the deceased; that the operatives of the train did not have it under control on approaching the crossing, which was negligence and a proximate cause of...