Graham v. Hines

• Decision Date: 24 March 1922
• Docket Number: (No. 8104.)
• Citation: 240 S.W. 1015
• Court: Texas Court of Appeals
• Parties: GRAHAM v. HINES, Agent, et al.<SMALL><SUP>*</SUP></SMALL>

240 S.W. 1015

GRAHAM v. HINES, Agent, et al.^*

(No. 8104.)

Court of Civil Appeals of Texas. Galveston.

March 24, 1922.

Rehearing Denied May 4, 1922.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Suit by J. A. Graham against Walker D. Hines, Agent, and others. Judgment for defendants, and plaintiff appeals. Reversed and rendered.

Woods, King & John, of Houston, for appellant.

Andrews, Streetman, Logue & Mobley, W. L. Cook, and Palmer Bradley, all of Houston, for appellees.

PLEASANTS, C. J.

This is a suit by appellant against the appellee to recover damages resulting from the death of his wife and child, and for personal injuries to himself, which it is alleged were caused by the negligent operation of a train on the railroad of the Beaumont, Sour Lake & Western Railway Company, which was then and there being operated by the Director General of Railways for the United States government, the appellee, as the agent of the government, having been, under the act of Congress terminating government control of railways (41 Stat. 456), substituted for the original defendant.

The petition alleges in substance, that plaintiff, on July 13, 1918, was driving a motorcycle to which was attached a sidecar in which his wife and infant daughter were seated, and that at the crossing of the Beaumont, Sour Lake & Western Railroad on Runnels street, in the city of Houston, his wife and baby were killed and plaintiff himself was injured, by reason of the negligence of the agents and servants of the Director General who were operating a passenger train on said railroad.

The allegations of negligence contained in the petition are as follows:

(a) That the duly authorized servants and employés of the defendant in charge of the train in question "carelessly and negligently collided with the plaintiff and wife, daughter, and motorcycle and side car attached thereto, with great force and violence," and that the negligence consisted of details later specified.

(b) That there was negligence in failing to maintain a proper and careful lookout.

(c) That there was negligence in failing to give legal, proper, and customary warning signals by blowing the whistle and continually ringing the bell of the locomotive 80 rods before reaching the crossing.

(d) That there was negligence in running through the city of Houston and upon and across the street in question "at a rate of speed, to wit, 35 miles per hour, and dangerous to plaintiff and others who were and might be then and there crossing said railroad track and to any other persons using said street and crossing and about to cross its track and in violation of the ordinance of the city of Houston."

(e) That there was negligence in failing to maintain proper control over the motive and propelling power of said train while going through the city of Houston and over and across its streets, and especially while approaching and crossing said Runnels street.

(f) That there was negligence in failing, after discovering the perilous position of plaintiff and his wife and child, to then use the means at hand to warn them and to avoid injuring them.

(g) That there was negligence in failing to maintain at the Runnels street crossing a watchman or signal device or bell to give warning of the approach of trains and when it was safe and unsafe to cross said railroad track.

(h) That there was negligence in placing upon a switch track north of and adjacent to the main line track a long line of box cars extending from the street line eastward from said crossing, thereby obstructing the view of said main line track eastward from said crossing to any person approaching from a southerly direction on said street.

(i) That there was negligence in running and operating the train at said time and place, it being then after sunset and partially dark, without having the headlight on the locomotive of said train lighted.

Paragraph VII of the petition elaborates the grounds of negligence above mentioned, relative to the duty to maintain a lookout and to give proper signals and to maintain proper control over the motor power and to have a watchman or signal device at the crossing.

Paragraph VIII again deals with the alleged rate of speed and uses the following language:

"That the said officers, agents, and employés in charge of said engine and cars were operating and running the same at a great rate of speed, to wit, about 35 miles per hour, and that said rate of speed was unlawful and contrary and in violation of the Revised Code of Ordinances of the City of Houston for the year 1914, and being section 1022 of chapter 35 of said ordinances, and under said ordinances it is unlawful for an engineer or other person in charge of a locomotive or train to run or drive the same within the corporate limits of the city of Houston at a greater rate of speed than 6 miles per hour."

This paragraph further alleges:

"That said engineer in charge of said locomotive and train did not have said locomotive and train under the proper control, and the control that an ordinarily prudent man would have had under the circumstances and could not control the same, and the running of said engine and cars at such great and excessive speed, namely, about 35 miles per hour, and without any signals, in such careless and negligent manner, was unlawful and in violation of the acts of the Code of Ordinances of the City of Houston, as above set out, and that said engine and cars and train running at such great speed came upon plaintiff at said time and place with such great suddenness, and thereby put him in great fear of safety for his life and the lives of his said wife and child, that if he did, or omitted to do, anything that would have avoided the collision, such act of omission or commission was due to the great fear he was under, brought about by said negligence of those operating said train, and he is not, in law, responsible therefor."

In setting out the details of the collision, plaintiff pleaded as follows:

"That plaintiff, approaching the said crossing on Runnels street, going in a southerly direction, when within approximately 45 feet of said main line crossing, reduced the speed of his motorcycle to 8 or 10 miles per hour, intending to further reduce the speed of said motorcycle in making said crossing; that when at a point about 40 feet from the main line crossing plaintiff first became aware of the approach of a passenger train coming from the eastward towards said crossing. The said train when first seen by plaintiff was just emerging from behind the aforesaid box cars placed on said switch track, and was then and there being run at an excessive rate of speed, to wit, at the rate of about 35 miles per hour, and the bell on the locomotive of said train was not being rung, nor had any whistle been sounded for said crossing, and the said train, which came puffing and running at said excessive rate of speed, came suddenly and without warning into plaintiff's view as it emerged from behind said box cars; that said train, by reason of the negligence of the servants and employés of the railroad company operating same in failing to give any warning of the approach thereof, and by reason of the negligence of the defendant in failing to have a watchman stationed at said crossing to give warning of the approach of said train, thus came suddenly and unexpectedly into the view of plaintiff when he was at a point approximately 40 feet from the crossing as aforesaid, thereby causing plaintiff to become excited and alarmed for the safety of himself and for the safety of his wife and child, who were riding with him; that, acting upon the impulse of the moment and influenced and actuated by the fear and excitement occasioned by the position of sudden and imminent peril which the near approach of said rapidly moving train suddenly placed him in, plaintiff made an effort to apply the brakes on the motorcycle, but in the moment of excitement and terror, instead of applying the brakes, as he intended to do, he applied instead the accelerator, thereby giving the motorcycle an increase of gas, which caused the same to be propelled directly toward said crossing; that, before plaintiff was able to regain the control of said motorcycle, the same had been placed in a position where a collision with said approaching train was inevitable and unavoidable; that plaintiff, in a frantic effort to avoid the collision, turned the motorcycle to the right, and in the direction in which said train was going, but too late to avoid the collision therewith."

The defendant answered by general demurrer and general denial, and by special plea of contributory negligence on the part of the plaintiff in approaching the railway crossing without keeping a proper lookout for approaching trains and without heeding the warnings given him by the whistle and bell on the train, by the headlight on the train, and the necessary noise made by the running train.

The plea further charges plaintiff with contributory negligence in approaching the crossing at a rapid and reckless rate of speed, and in not reducing his speed to a point consistent with safety and with the requirements of law.

"In this connection this defendant further alleges that plaintiff on the occasion in question and immediately prior to the accident resulting in the death of his wife and daughter was approaching the intersection of a public street in the city of Houston with the tracks of a steam railroad, namely, that of Beaumont, Sour Lake & Western Railroad, then and there operated by Walker D. Hines, Director General of Railroads, and such street crossed the railroad tracks at grade, and the view of the crossing was obscured either wholly or in part, and plaintiff did not, before attempting to make said crossing and at a point not nearer than 30 feet of the track, reduce the speed of his motor vehicle or motorcycle to a speed not to exceed 6 miles per hour, but continued at the...