Hines v. Foreman

• Decision Date: 14 June 1922
• Docket Number: (Nos. 312-3543.)
• Citation: 243 S.W. 479
• Parties: HINES, Director General, v. FOREMAN et ux.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

243 S.W. 479

HINES, Director General, v. FOREMAN et ux.^*

(Nos. 312-3543.)

Commission of Appeals of Texas, Section B.

June 14, 1922.

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

Action by J. M. Foreman and wife against Walker D. Hines, Director General. From a judgment affirming judgment for plaintiff (229 S. W. 630), defendant brings error. Reversed and remanded.

Stanford & Sanders, of Canton, and Johnson, Edwards & Hughes, of Tyler, for plaintiff in error.

R. S. Shapard, of Dallas, and Wynne & Wynne, of Wills Point, for defendants in error.

McCLENDON, P. J.

This suit was brought by J. M. Foreman (who will be referred to as plaintiff) and wife against the Director General of Railroads, Walker D. Hines, to recover compensatory damages resulting from a collision between an automobile driven by plaintiff and one of defendant's trains at a public crossing in the town of Wills Point, Tex., on July 16, 1918, in which accident plaintiff's son, Earl Foreman, was killed, plaintiff J. M. Foreman sustained personal injuries, and the automobile was demolished. By a divided court the Court of Civil Appeals affirmed a judgment of the trial court in favor of plaintiff rendered upon a special issue verdict. 229 S. W. 630.

The leading controversy presented is whether the judgment can be permitted to stand in view of a finding by the jury to the effect that the operation of the automobile in an incorporated town without a muffler in violation of section 12 of chapter 207 of the General Laws of 1917 (Vernon's Ann. Pen. Code Supp. 1918, art. 820g), regulating operation of motor vehicles, caused or contributed to cause the accident.

The collision took place about 4 o'clock in the afternoon. There is little dispute about the physical conditions surrounding the accident. The crossing in question was west of the passenger depot at Wills Point, at which the train, which was a local passenger, and was about on time, was scheduled to stop. From the crossing east the track was straight for a distance of half a mile or more. There was a slight grade for 228 feet, and from that point for about 800 feet the grade was slightly downward. The difference in grade between the highest and lowest points for over 1,000 feet east of the crossing was slightly under 8 feet. Beginning at the crossing and proceeding east was a slight cut which attained its greatest depth at 429 feet where it was 4.9 feet from the top of the rails to the top of the dump. From the top of the rails to the height of the engine cab was about 13 feet, the coaches about 12 feet, and the smoke stack about 15 feet. The right of way east of the crossing was unfenced and about 200 feet wide, the track being in the center. On either side of the right of way and abutting upon it was a public street. The crossing roadway in question connected those two streets, but did not extend beyond either; each street extending both east and west from the crossing roadway. There were no obstructions between the north street or crossing road and the track east of the crossing other than the cut and grades mentioned. About 400 feet east of the crossing was a road extending north from the north street and at right angles to it. The train was bound west and traveling at an estimated speed of from 20 to 25 miles an hour. Plaintiff and his son traveled south over the road last mentioned, turned to the right or west into the street north of the right of way, and proceeded upon that street until they reached the crossing road, into which they turned south to cross the track. As the automobile reached the center of the track the collision occurred. The automobile was knocked some 20 or more feet west of the crossing and south of the track. Plaintiff's son jumped from the machine about the time of the collision and received injuries from which he died in a very few minutes. There were no other passengers in the car. This car had been purchased by plaintiff a few months previous. It was, as testified to by plaintiff, a secondhand four-cylinder Overland with a right-hand drive and a very heavy car. Plaintiff was driving and was on the right and his son on the left side of the front seat of the car. Plaintiff testified that as he turned into the crossing road he looked east along the track, but neither saw nor heard the train until it was practically upon him. The engineer, who was on the right or north side of the engine, testified that he saw plaintiff's automobile as it drove into the north street proceeding west, and presumed he would continue on that street until he saw him turn into the crossing road, at which time the engine was about 150 feet from the crossing, that he immediately blew the whistle and put on the brakes, but that it was impossible to stop the train before reaching the crossing. The witnesses who testified upon the point all agreed that when the train stopped the rear end of the rear coach had just cleared the crossing.

The jury found that the statutory signals of blowing the whistle and ringing the bell were not given; that the engineer did not exercise ordinary care to avoid injuring plaintiff and his son while approaching the crossing, and that each of these derelictions was a proximate cause of the accident; that plaintiff and his son did "exercise such ordinary care as would be used by an ordinarily prudent person under the circumstances in this case to avoid injury and damages." In answer to special issues requested by defendant the jury found that "the running and operation of the automobile by plaintiff J. M. Foreman and his son, Earl Foreman, without a muffler caused or contributed to cause the injury of J. M. Foreman and the death of Earl Foreman and the destruction of the automobile"; that when plaintiff and his son came into the public road running east and west facing the railroad track the train was not in plain view, nor was it in plain view when the car turned to cross the track; and that a person of ordinary prudence intending to cross the track at that point would have looked to the east to ascertain whether the train was approaching on the track that might endanger him in making the crossing.

Section 12 of chapter 207 of the act of 1917 reads as follows:

"Every motor vehicle must have devices in good working order which shall be at all times in constant operation to prevent excessive or unusual noises, annoying smoke and the escape of gas, steam or oil as well as the falling out of residue from fuel, and all exhaust pipes carrying exhaust gas from the engine shall be directly parallel to the ground or slightly upward. Devices known as `muffler cut-out' shall not be used within the limits of any incorporated city or town or on any public highway where the territory contiguous thereto is closely built up." Vernon's Ann. Pen. Code Supp. 1918, art. 820g.

The only testimony upon this issue was that given by plaintiff himself upon cross-examination as follows:

"Yes; my car made a good deal of noise in running. As a general thing I drove it with the muffler open. Yes; I had a muffler. I imagine I was running with the muffler open; I cannot say positively, because I never thought of anything like this; it is my opinion that the muffler was open, as that is better on a car; I practically run the car all the time with the muffler wide open, and my best recollection is that on this occasion it was wide open. * * * The sound of my car driven with the muffler open would naturally lessen my chances of hearing other noises. I had never thought about that."

The record does not show any objection to this testimony.

The contention of defendant is that driving the car with the muffler open within an incorporated town was a violation of this statue, and therefore negligence per se, and that the jury having found that this act on plaintiff's part caused or contributed to the accident, it follows necessarily that plaintiff was guilty of contributory negligence as a matter of law, and therefore the judgment was contrary to the verdict.

There are a number of contentions urged by plaintiffs why the verdict should be upheld, regardless of this jury finding, which we will consider later.

The section above quoted is part of an act requiring the licensing of motor vehicles and prescribing various rules and regulations for their operation upon public highways. Section 42 of the act provides:

"If any section, subsection or clause of this act is for any reason held to be unconstitutional, such decision shall not affect the validity of any of the remaining portions of this act." Vernon's Ann. Civ. St. Supp. 1918, art. 7012½s.

The act as originally passed provided penalties for violation of certain of its provisions, but in several instances no penalty was prescribed. By an amendment passed at the first called session of the same Legislature a violation of certain other provisions, including that in question, was made a misdemeanor; and by a further amendment passed at the third called session of that Legislature the remaining provisions were penalized. The constitutionality of the act has been brought in question in several cases decided by the Court of Criminal Appeals. In Mosier v. State, 234 S. W. 225, the act was held not violative of article 3, § 35, the Constitution, inhibiting bills other than general appropriation bills from containing more than one subject. In that case a judgment of conviction under section 18 of the act (Vernon's Ann. Pen. Code Supp. 1918, art. 820m), convicting a driver of the offense of failing to stop and render necessary assistance to a person struck by his automobile was affirmed. In Griffin v. State, 86 Tex. Cr. R. 498, 218 S. W. 494, the 1919 amendment providing a penalty for violating section 9 of the act, relating to glaring headlights, was held void on account of indefiniteness of the statute. Vernon's Ann. Pen. Code Supp. 1922, art. 820d. To the same effect is Snider v. State, 89 Tex. Cr. R. 192, 230 S. W. 146,...