Hargrave v. Texas & P. Ry. Co.

• Decision Date: 23 January 1929
• Docket Number: (No. 970-5109.)
• Citation: 12 S.W.2d 1009
• Parties: HARGRAVE v. TEXAS & P. RY. CO.
• Court: Texas Supreme Court

Page 1009

12 S.W.2d 1009

HARGRAVE v. TEXAS & P. RY. CO.

(No. 970-5109.)

Commission of Appeals of Texas, Section B.

January 23, 1929.

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

Action by J. R. Hargrave against the Texas & Pacific Railway Company. A judgment for plaintiff was reversed and the cause remanded by the Court of Civil Appeals , and plaintiff brings error. Affirmed.

W. S. Adamson, of Ranger, and Grisham Bros., of Eastland, for plaintiff in error.

R. S. Shapard and T. D. Gresham, both of Dallas, Conner & McRae, of Eastland, and Shropshire & Bankhead, of Weatherford, for defendant in error.

SPEER, J.

J. R. Hargrave sued the Texas & Pacific Railway Company and recovered a judgment for $9,000 on account of personal injuries sustained by him in a collision between the defendant's train and an automobile in which he was riding, at the Main street crossing of defendant's railroad track in the city of Ranger. Several grounds of negligence were alleged, including the violation of an ordinance requiring the railroad company to keep a flagman at the crossing, and the defendant answered generally and specially that the plaintiff was guilty of contributory negligence.

Upon the trial, the cause was submitted upon special issues, including failure to blow the whistle for the crossing, failure to ring the bell, the rate of speed at which the operatives ran the train, and the failure to have a flagman at the crossing to warn the plaintiff of the approaching train. At the request of the plaintiff, however, the court instructed the jury as follows:

"You are instructed that the failure of the defendant to maintain a flagman at the crossing in question where the injury occurred constitutes negligence as a matter of law, and in connection with this instruction you will answer the following questions:

"(a) Was the failure of the defendant to maintain a flagman at the crossing in question the sole proximate cause of the injury, if any, which plaintiff sustained?"

"If you have answered the foregoing question in the affirmative, then you need not answer any questions propounded to you in the general charge, but you will answer the following question" (with respect to the amount of compensation).

The jury having answered subdivision (a) of the plaintiff's requested issue in the affirmative, and having found the amount of plaintiff's damages to be $9,000, the court entered judgment for plaintiff accordingly.

Upon appeal this judgment was reversed and the cause remanded. (Tex. Civ. App.) 1 S.W.(2d) 740. The writ of error was granted to review the holding of the Court of Civil Appeals that the ordinance which the trial court had treated as valid was void.

The ordinance reads as follows: "Each railroad company having track or tracks crossing Main Street shall be and is hereby required to keep a flagman at said crossing to give notice of the approach of trains, engines, and cars upon said tracks, and such flagman shall be stationed and kept at the crossing of said tracks of said Main Street from 5 A. M. to the hour of 10 P. M."

The Court of Civil Appeals, following City of Waxahachie v. M. K. & T. Ry. Co. of Texas (Tex. Civ. App.) 183 S. W. 61, held that the ordinance was void upon the ground that it unreasonably required the railroad company to maintain a watchman at the crossing continuously from 5 o'clock a. m. to 10 o'clock p. m., irrespective of the necessity therefor by reason of approaching trains, engines, or cars upon the tracks.

The case which the Court of Civil Appeals followed never reached the Supreme Court, and our decision is therefore uninfluenced by it.

There is much force in the contention that an ordinance which unnecessarily requires a flagman to be kept at a crossing, irrespective of the necessity therefor, is void, as an unreasonable demand upon the railroad company. But we do not interpret the ordinance under review as having that effect.

It is a familiar rule of construction of statutes that the purpose of the enactment will be considered, that is, the evil sought to be remedied, and the means sought to be supplied to that end will govern largely as to the intention of the lawmakers, and the intention...