Hines v. Arrant

• Decision Date: 17 November 1920
• Docket Number: (No. 2314.)
• Citation: 225 S.W. 767
• Parties: HINES, Director General of Railroads, v. ARRANT.
• Court: Texas Court of Appeals

225 S.W. 767

HINES, Director General of Railroads, v. ARRANT.

(No. 2314.)

Court of Civil Appeals of Texas. Texarkana.

November 17, 1920.

Rehearing Denied December 9, 1920.

Appeal from District Court, Cherokee County; L. D. Guinn, Judge.

Action by T. A. Arrant against Walker D. Hines, Director General of Railroads. From a judgment for plaintiff, defendant appeals. Affirmed.

Marsh & McIlwaine, of Tyler, for appellant.

Simpson, Lasseter & Gentry, of Tyler, and Norman, Shook & Gibson, of Rusk, for appellee.

HODGES, J.

This appeal is from a judgment in favor of the appellee for the sum of $15,500. Of that amount $15,000 was for personal injuries, and $500 for damages to an automobile. The injuries which formed the basis of the suit resulted from a collision between the appellant's train and an auto in which the appellee was riding. The facts show that the appellee resided in the town of Alto, through which the Cotton Belt Railway Company operated a line running north and south. One of the principal streets, known as the "San Antonio Road," runs east and west and crosses the railway track a short distance from where the appellee resided. On the day of his injury he rode in his automobile north about two blocks to where the street he was traveling intersects San Antonio Road street at a point about 50 feet east of the railway track. He then turned west, and, just as he was crossing the track, the car in which he was riding was struck by a south-bound train consisting of a motorcar and two passenger coaches.

The negligence alleged was the failure to give the statutory signals as the train approached the crossing, the running of the train at a high rate of speed, the failure to keep a reasonable lookout for persons approaching the crossing, the failure to keep the train under control, and the failure to avoid the collision after discovering the perilous situation of the plaintiff. The appellant pleaded, among other defenses, contributory negligence, and also denied that the engineer in charge of the train actually discovered the peril of the appellee in time to avoid the collision. The principal defense relied on was contributory negligence on the part of the appellee in failing to look and listen for the approaching train. It is also contended in this appeal that the evidence is not sufficient to show that the engineer in charge of the train discovered the peril in time to prevent the injury.

The case was submitted to a jury on special issues, and the following is the substance of the material facts found by the jury: That the engineer failed to give the statutory signals in approaching the crossing; that he negligently failed to keep the train under control when approaching the crossing; that such failure was a proximate cause of the injury; that the engineer discovered the plaintiff as he was approaching the crossing and that he would not likely stop or get across the track in time to avoid being struck; that the engineer failed to use ordinary care to stop or lessen the speed of the train or to sound the whistle or ring the bell; that the speed of the train was faster than an ordinarily prudent person would have run under the same or similar circumstances; that the engineer saw the plaintiff approaching the crossing, and that he failed to sound the whistle or ring the bell to warn him of the approach of the train; that the foregoing failures of the engineer were the proximate causes of the injuries to the plaintiff. The jury further found that the plaintiff did look and listen before he went on the crossing.

The first group of assignments complain of the refusal of the court to give a peremptory instruction to find for the defendant, and under those assignments the principal defense is discussed. The appellee testified that he had been running his car only about a month. On the day of the injury he had occasion to go from his hotel to the opposite side of the railroad, and as he left his garage he looked at his watch and found that it was 10 o'clock. The south-bound train was due at 9:43, and the trains usually ran on time. It occurred to him when he looked at his watch that the train had passed. After leaving the garage he traveled north two blocks parallel with the right of way. When he reached the San Antonio Road, which runs east and west, and just as he was entering that street, he looked up the railroad track but saw no train. The crossing into San Antonio Road was rough, and he was traveling slowly. He then turned west, and just as he was crossing the track his car was struck by the train. The first he saw of the train it was "right at him." The point where he looked for the train was 53 feet from the center of the track; at that time he could have seen a train approaching from the north 150 yards distant. He was traveling at about five miles an hour, and could have stopped his car within a few feet. This evidence makes it practically certain that, had the appellee looked after he turned west on the San Antonio Road, he could and would have seen the approaching train. The question is: Was his failure to do so under the circumstances contributory negligence as a matter of law? If every one injured in a railroad collision who could by looking and listening discover the approach of the train before going upon the track is to be charged with contributory negligence, it would be difficult to find an instance in which that defense would not be fully established. The situations are exceedingly rare in which travelers cannot, if they will, ascertain whether or not it is safe to attempt a crossing. But the legal test is, not what the traveler could have done had he used his senses, but what an ordinarily prudent person would have done under the particular circumstances. Hence the courts have held that the failure to look and listen before going upon a railway track is not, as a matter of law, contributory negligence. Trochta et al. v. M., K. & T. Ry. Co. (Com. App.) 218 S. W. 1038; Frugia v. T. & Ft. S. Ry. Co., 36 Tex. Civ. App. 648, 82 S. W. 814; H. & T. C. Ry. Co. v. Wilson, 60 Tex. 142. However, it does not follow that the failure to look and listen may not, under some conditions, be treated as conclusively showing contributory negligence. The latter rule is applied when the undisputed facts show that the failure to use that precaution was an inexcusable act of carelessness of which no person of ordinary prudence would have been guilty. In the case before us the jury had a right to conclude that the appellee thought this train had passed; that when he looked, at a point 50 feet from the track, and saw no train, he might reasonably infer that it was safe to cross; that he was comparatively a new driver, and most of his attention was...