Henwood v. Gilliam

• Decision Date: 07 November 1947
• Docket Number: No. 13844.,13844.
• Citation: 207 S.W.2d 904
• Parties: HENWOOD v. GILLIAM.
• Court: Texas Court of Appeals

207 S.W.2d 904

HENWOOD v. GILLIAM.

No. 13844.

Court of Civil Appeals of Texas. Dallas.

November 7, 1947.

Rehearing Denied December 5, 1947.

Appeal from District Court, Hunt County; Charles Berry, Judge.

Action by Billy Wayne Gilliam against Berryman Henwood, trustee of the St. Louis S. W. Railway Company of Texas, for damages from collision of plaintiff's automobile with train. Judgment for plaintiff and defendant appeals.

Affirmed.

Adair Dyer, of Dallas, and Allen Clark, of Greenville, for appellant.

G. C. Harris, of Greenville, for appellee.

BOND, Chief Justice.

This cause was recently assigned to the writer for the preparation of an opinion expressing the conclusions of this Court. The action is one for damages resulting from a collision of appellee's automobile with appellant's train of cars standing across a public highway within the corporate limits of Wolfe City, Texas, without guards, flagman or watchman, lights or flares, or any mechanical device for warning of the obstruction of the crossing. On trial to a jury, on special issues, the jury found that the conditions surrounding the crossing were such as a reasonably prudent person, exercising ordinary care, could not at nighttime use with safety; that the conditions were known to the defendant, his agents, servants and employees at the time of the said collision, or by the exercise of ordinary care, could or should have been known by them; that the obstruction, under the existing circumstances, was a proximate cause of the collision and damages sustained by plaintiff; that the failure of the defendant to have installed and in operation at the crossing a mechanical device for warning plaintiff and others using the highway of the obstruction, was negligence under the circumstances then existing and a proximate cause of the collision and plaintiff's damages; and that defendant's failure to keep a proper lookout (the term "proper lookout" is defined in the court's charge as a "lookout that would be kept by a person of ordinary prudence under the same or similar circumstances"), was negligence and a proximate cause of the collision and damage. The jury further found that on the occasion in question the plaintiff, approaching the railroad crossing, did not fail to keep a "proper lookout" for his own safety for a train standing across the highway; that the plaintiff was not guilty of negligence to listen for a train on approaching the crossing, or to have his automobile under control so that he could have stopped same within the range of his vision, or operated his automobile under all the circumstances existing at the time of the collision at an unreasonable, excessive, or dangerous rate of speed, or failed to retard or slow down the speed of his automobile under all the circumstances existing at said time; and that the collision in question was not the result of an unavoidable accident. The jury assessed the damages.

This appeal is predicted upon a single point of error, in that, the trial court erred "in refusing to grant appellant's motion for a peremptory instruction for the reason that under the undisputed facts and as shown by said motion, appellee was guilty of contributory negligence as a matter of law."

Appellant's motion for peremptory instruction assigns numerous grounds in support of the motion, but, in brief here presented, appellant limits his complaint to the failure of the court to grant the motion on the ground of contributory negligence of appellee as a matter of law. So, in all other respects we must assume the verdict of the jury finds support in evidence to sustain the judgment of the trial court; and, where the trial court has submitted to the jury issues of contributory negligence, and the jury has acquitted the appellee on such issues, then the question arises on appeal as to whether or not, after weighing all the evidence most favorable towards appellee, disregarding all evidence to the contrary, it can be said that plaintiff's conduct was negligent as a matter of law irrespective of the negligence of the appellant; that is, whether the appellee exercised ordinary care under all the circumstances, whether he acted as an ordinarily prudent person would have acted.

What is ordinary care under a given ground of facts must be determined by the jury as to what, in their judgment, a man of ordinary prudence would have done for his own safety under the attendant circumstances. The jury, in all such cases, are the triers of the facts and the trial judge, if there is any substantial evidence supporting the finding, must follow the verdict of the jury in rendering judgment. In which case, this Court is without the power to disturb the judgment.

Briefly, the evidence shows the railroad crossing to be in a depression or flat, and is approached by travelers on the public highway from the north and south at a downgrade. On the south upgrade the City of Wolfe City had four or more street lights which, at night, throw rays of light discernible by travelers approaching the crossing from the north and about on level with the top of a box car. The defendant's train of cars, in which was a flatcar three or four feet high from the rails or ground, was across the highway, the presence of the flatcar obstructing the road. There were no lights, flares, watchman or mechanical device at the crossing to warn the traveling public of the presence of the obstruction. At about 10 o'clock on the night of April 17, 1946, the plaintiff, in company with a young lady sitting in the front seat of his automobile with him and another couple on the back seat, approached the crossing from the north, the automobile moving at about 25 to 30 miles per hour, and, without slackening his speed, the plaintiff ran head-on into and under the flatcar, resulting in the injury to himself and damage to his automobile.

The plaintiff testified that he had been living in Wolfe City for approximately thirteen years, since he was eight years of age, he was then twenty-one years of age; that he was familiar with the railroad crossing and knew the conditions that existed there. He said: "I had been across it, knew it was down in a flat, and knew there were lights in Wolfe City, and knew all about it"; that, in approaching the crossing, traveling from the north, it is downhill, and same is true coming to the crossing from the south; the crossing is in the flat between the hills. That about 10 o'clock on the night of April 17, 1946, he and the three others were returning to Wolfe City from Ladonia, Texas, traveling in his automobile at a rate of speed from 25 to 30 miles per hour, not over 30 miles per hour; that he approached the railroad crossing, saw the street lights in front of him; they were up high, which made the crossing difficult to observe, and, as he approached the crossing and just before the collision, he recognized the flatcar was across the track, and, before he could apply his brakes, ran head-on into the train of cars; that there was no signal-man or watchman or anyone else there to give warning, and no lights or flares or any kind of mechanical apparatus to warn one approaching from the north. In answer to questions on cross-examination, the plaintiff further testified that he did not know whether he could have seen the train standing across the track if he had been looking for the train; he did not see it as he was approaching the crossing. "You have to get right up on it before you see it * * * It is downgrade there.

"Q. I know its downgrade, but you haven't answered my question. How far could you have seen it? A. I don't know.

"Q. Thirty feet? A. I don't believe I could have seen it in that length of time.

"Q. Twenty-five feet? A. I don't know how far.

"Q. Well, will you say you couldn't have seen it at twenty-five feet? A. No sir. * * *

"Q. In how far could you have stopped, if you had seen the train, do you suppose? A. At my speed, the width that my lights were showing. * * *

"Q. In what distance could you stop, then? A. I don't know what the distance was * * *.

"Q. Do you think you could have seen that train if you had been looking that night? A. I was looking."

In the main, plaintiff's testimony is substantiated by that of numerous other witnesses: A Mr. King testified that he was familiar with the crossing and the highway; saw plaintiff's automobile approaching the crossing at a rate of about 15 or 20 miles per hour; that he had traveled the highway "right smart" at nights, observed, from the north, the street lights of the City with reference to the crossing, that they showed above the crossing. That he saw the collision of the automobile with an empty flatcar standing across the highway. In answer to questions on cross-examination, this witness said that "There wasn't...