Gulf, C. & S. F. Ry. Co. v. Jones

• Decision Date: 29 April 1949
• Docket Number: No. 2708.,2708.
• Citation: 221 S.W.2d 1010
• Parties: GULF, C. & S. F. RY. CO. v. JONES et al.
• Court: Texas Court of Appeals

221 S.W.2d 1010

GULF, C. & S. F. RY. CO. v. JONES et al.

No. 2708.

Court of Civil Appeals of Texas. Eastland.

April 29, 1949.

Rehearing Denied June 3, 1949.

Second Motion for Rehearing Overruled July 8, 1949.

Appeal from District Court, Nolan Count; A. S. Mauzey, Judge.

Action by Bert Jones and another against Gulf, C. & S. F. Ry. Co. and Harp's Yellow Cab Company for injuries suffered by plaintiff's wife. From a judgment for plaintiffs against defendant railway company, and for defendant cab company, defendant railway company appeals.

Affirmed.

Mays, Perkins & Sheridan, Sweetwater, for appellant.

Chas. L. Nunn, Sweetwater, Carl M. Anderson, Sweetwater, Turner & Seaberry, Eastland, for appellees.

LONG, Justice.

Plaintiff Bert Jones sued defendants, the Gulf, Colorado and Santa Fe Railway Company and Harp's Yellow Cab Company for damages on account of injuries suffered by his wife who was riding as a passenger in a taxi cab owned by the defendant Harp which was struck by the railway company's train at a crossing of the railroad track with a public street in the City of Sweetwater. The jury, in answer to special issues, found that the employees of the railway company who operated the train were negligent in several particulars and that each of such negligent acts was a proximate cause of the injury to Mrs. Jones. The jury acquitted Harp of negligence and Jones of contributory negligence. Based upon the findings of the jury, judgment was entered in favor of plaintiff against the railway company and in favor of Harp, from which judgment the railway company has appealed.

The railway company assigns as error the failure of the trial court to submit requested special issues upon two phases of the case: (1) the alleged contributory negligence of Mr. and Mrs. Jones with reference to their failure to keep a proper lookout for the train and to listen for the bell and whistle of the train; (2) the alleged contributory negligence of the taxi cab driver in failing to reduce the speed and in failing to stop his car prior to the accident.

The railway company requested the court to submit to the jury special issues inquiring whether Jones and his wife were negligent in either failing to keep a proper lookout or to listen for trains as the taxi cab approached the crossing in question. We will discuss only those issues as applied to the plaintiff Jones for the reason that the same rules of law are applicable to Mrs. Jones.

The record discloses that on the night of May 23, 1947, Jones and his wife and two children were fare paying passengers in a taxi cab belonging to Harp. They were seated on the back seat of the taxi cab and the driver of the cab was alone on the front seat. The railway company was pushing or backing fourteen cars across a public street when the collision occurred about 11:00 o'clock on that night. Appellees take the position that the evidence is not sufficient to raise an issue on the failure of Jones to keep a proper lookout. In other words, they say that there was no duty on the part of Jones to keep a lookout under the facts and circumstances in this case.

We have carefully examined the authorities cited by all parties and have concluded that the court properly refused to submit such issue. In the case of Harper v. Texas & P. Ry. Co., Tex.Civ.App., 146 S.W.2d 426, 427 (writ ref.), Judge Grissom, in delivering the opinion of the court, said:

"The Supreme Court, in an opinion by Judge Smedley, in Edmiston v. Texas & N. O. Ry. Co., 135 Tex. 67, 138 S.W.2d 526, 529, announced the rule applicable to the question presented as follows:

"`The rules with respect to the duty of one riding as a guest in an automobile to keep a lookout have been stated and applied in several cases, some of which are: Davis v. Pettitt, Tex.Com.App., 258 S.W. 1046; Ford Motor Co. v. Maddin, 124 Tex. 131, 76 S.W.2d 474; Garcia v. Moncada, 127 Tex. 453, 94 S.W.2d 123; Schumacher Co. v. Shooter, 132 Tex. 560, 124 S.W.2d 857; International-Great Northern R. Co. v. Lucas, Tex.Civ.App., 123 S.W.2d 760, application for writ of error refused. The substance of the rules announced by these decisions is briefly stated as follows: While the duty of the guest is measured by the same standard as that of the driver, which is that he is bound to use reasonable care, the care which a person of ordinary prudence would use under like circumstances, the conduct required by the standard is generally very different. The driver is in charge of the automobile and the law imposes upon him the duty when driving on a public highway or street to use care constantly in keeping a lookout. Southland-Greyhound Lines, Inc., v. Richardson, 126 Tex. 118, 124, 86 S.W.2d 731. The guest, however, not being in charge of the operation of the automobile, is not required constantly to keep a lookout. Ordinarily he may reasonably and lawfully rely on the driver to keep watch.

"`Associate Justice Funderburk, writing the opinion in International-Great Northern R. Co. v. Lucas, Tex.Civ.App., 123 S.W.2d 760, 764, in which application for writ of error was refused, quoted with approval the following paragraph from the Testament of the Law of Torts (vol. 2, pp. 1282, 1283, section 495), which, in our opinion, is a correct declaration of the rule established by the decisions in this state as to the amount of care required of a guest in an automobile: "Save in exceptional situations, a guest or passenger in a vehicle is not required to keep a constant lookout or to see to it that he shall be in a condition to do so. Thus, a plaintiff riding in the front seat may take his attention off the road to look at the scenery or may turn around to speak to a friend in the back or he may go to sleep or read a book without being guilty of contributory negligence if the driver commits some negligent act which the plaintiff, had he been on the alert, might have had the opportunity to prevent. However, if the plaintiff knows that at a particular point there will be a peculiar danger, which he has no reason to believe that the driver if unaided will perceive, the plaintiff may be guilty of negligence if he does not keep himself in a position to call the danger to the attention of the driver. Save under such exceptional circumstances, a plaintiff is entitled to trust the vigilance and skill of his driver unless he knows from past experience or from the manner in which the car is being driven on the particular trip, that the driver is likely to be inattentive or careless".'"

We find no evidence in the record showing the existence of exceptional circumstances which would impose upon Mr. Jones the duty to keep a lookout or which should have caused him to know or believe that he ought not to trust the vigilance of the driver. There was no evidence of any improper driving, carelessness or other misconduct on the part of the taxi cab driver. It is true the jury found that the crossing involved was extra hazardous and dangerous and that Jones knew the crossing and the situation existing and had known the same for many years, but it is conclusively established that the driver of the taxi cab had lived in Sweetwater for a number of years and had been driving a cab for this same company for more than three years; that he had never prior thereto, while driving a taxi cab, been involved in an accident. In fact, it is conclusively established that he knew as much or more about the crossing as Jones knew.

There is...