Hines v. Foreman

• Decision Date: 05 February 1921
• Docket Number: (No. 8410.)
• Citation: 229 S.W. 630
• Parties: HINES, Director General of Railroads, v. FOREMAN et ux.
• Court: Texas Court of Appeals

Page 630

229 S.W. 630

HINES, Director General of Railroads, v. FOREMAN et ux.

(No. 8410.)

Court of Civil Appeals of Texas. Dallas.

February 5, 1921.

Rehearing Denied March 19, 1921.

Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.

Action by J. M. Foreman and wife against Walker D. Hines, Director General of Railroads. Judgment for plaintiffs, and defendant appeals. Affirmed.

Wynne & Wynne, of Wills Point, for appellant.

Stanford & Sanders, of Canton, and Johnson, Edwards & Hughes, of Tyler, for appellees.

RAINEY, C. J. (dissenting).

We quote from appellant's brief the nature and result of the suit, as follows:

"J. M. Foreman and his wife. Minnie Foreman, brought this suit in the district court of Van Zandt county against the receivers of the Texas & Pacific Railway Company, and after the government, through Walker D. Hines, Director General of Railroads, had directed that all suits should be brought against him as Director General and should be prosecuted and judgment entered in conformity with that direction, the appellees in the court below filed their first amended original petition, complaining of Walker D. Hines, as Director General of Railroads, alone. They brought the suit for damages to J. M. Foreman and for the death of their minor son, Earl Foreman, and the destruction of an automobile in which the plaintiff J. M. Foreman and Earl Foreman were riding at the time of the accident. They alleged and charged that the train collided with the automobile at a public crossing of the town of Wills Point, an incorporated city; that the train was traveling west and the appellee J. M. Foreman and his son were crossing the track going south, and the train collided with the car on the crossing, killing Earl Foreman, the minor son, and permanently injuring plaintiff J. M. Foreman, and totally destroying the car. As acts of negligence against the company, they charge:

"(1) That the servants, agents, and employés in charge of the train failed to ring the bell and blow the whistle at least 80 rods east of the crossing before approaching it, and this caused, or contributed to cause, the injuries.

"(2) They charge that the train was being run and operated at a dangerous rate of speed in approaching the crossing that caused the injuries.

"(3) That the servants, agents, and employés in charge of the train failed to keep a proper lookout for persons traveling along the track, and that this was negligence.

"(4) That the servants, agents, and employés in charge of the train, after observing appellee J. H. Foreman and his son and the car in which they were riding, failed to exercise ordinary care to stop the train and prevent injuring them, after it occurred to them that the plaintiff and his son were in danger.

"(5) They allege that appellant failed to have a whistling post at least 80 rods east of the crossing to notify its servants, agents, and employés operating its train when to blow the whistle and commence to ring the bell, to comply with the requirements of the laws of the state, and that this was negligence.

"Appellant filed his original answer, in which he denies each and every allegation in plaintiffs' petition. He charged that J. M. Foreman, appellee, and his son were guilty of contributory negligence in running and operating the car in which they were riding that caused or contributed to cause the injury, in this: (1) That the appellee and his son came in from their home, which was to the north of Wills Point, and onto the public street running east and west and parallel with the track of the appellant; that from the time they came out into the public street going west the train of appellant that collided with the car of appellee and his son was in plain view of the appellee and his son, and continued in plain view of them until they reached the crossing upon which the accident occurred, and they failed to look and listen for the approach of the train either at the time they came out on the public street and turned west or at any time until they turned to the south and started across the track; if they had looked back they could have seen the train of appellant approaching; that a man of ordinary care would have looked and listened for the train before driving suddenly upon its track; that in failure to do so the appellee J. M. Foreman and his son were guilty of contributory negligence. (2) That at the time appellee and his son were injured and the car was destroyed they were driving the car in an incorporated city without a muffler cut-out, as is provided by law, and that they were then and there violating the criminal laws of the state and were operating the car in violation of the law, and that this caused, or contributed to cause, the injury to plaintiff and his son, and that by so running the car they were guilty of contributory negligence. (3) He further alleged that in approaching the track of the appellant the appellee in the car failed to slow down his car to six miles an hour before attempting to cross the track, as is required by law, and that they were thereby guilty of negligence that caused, or contributed to cause, the injury.

"Upon these issues the cause went to trial and was submitted to the jury by the trial court on special issues, and on answer of the special issues made by the jury the court, on motion of appellee, entered judgment in favor of appellee for the sum of $5,000, the amount found by the jury in answer to the special issues. The appellant in due season filed his motion to enter judgment on the findings of the jury in favor of appellant, which was overruled by the court. He then filed his motion for new trial and to set aside certain findings of the jury, which motion was by the court overruled, to which action of the court appellant excepted and gave notice of appeal in open court to the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas, at Dallas, and 90 days were allowed by the trial court to complete the record. The appellant in due season filed his appeal bond, and filed his statement of facts, bills of exception, sued out the transcript before the clerk, which was filed in this court on January 15, 1920, thus bringing the cause before this court for review, and asking that it be reversed for the reasons set out in the motion for new trial and assigned now in this court as errors committed in the trial court that should cause the case to be reversed or reversed and rendered.

"For the sake of brevity, assignments of error Nos. 1 and 2 will be considered together:

"First Assignment of Error.

"The court erred in overruling defendant's special exception to the plaintiffs' petition wherein the plaintiffs charge as an act of negligence the defendant's failure to have and maintain a whistling post at least 80 rods from the crossing on which the accident happened, and permitting the plaintiffs to prove by their witness D. M. Edwards, who was an engineer, that said whistling post was not erected and in place at a point at least 80 rods east of the crossing. This was error, for the reason that there is no law requiring a railroad company to maintain a whistling post at any distance from public crossings, and the pleading in evidence was calculated to deceive the jury in passing upon the other main issues in the cause.

"Second Assignment of Error.

"The court erred in permitting the witness of plaintiffs, D. M. Edwards, to testify over the objection of defendant that at the time of the accident defendant failed to have a whistling post at least 80 rods east of the crossing; the defendant objecting to said testimony for the reason that the same was irrelevant and immaterial and was no ground of negligence on the part of defendant, and was calculated to mislead the jury on other issues of this cause, more especially would this affect special issue No. 5.

"First Proposition under First and Second Assignments of Error.

"It is error for the trial court to refuse to strike out immaterial allegations in petition, to admit proof tending to support these immaterial allegations, and to attempt to control it in his charge, for the reason that the same is calculated to mislead and deceive the jury.

"Statement.

"Before announcement of ready for trial, appellant submitted his general and special exceptions to plaintiffs' petition, especially excepting to that part of appellees' petition in which they charge that the appellant failed to keep a whistling post, properly marked, at least 80 rods east of the public crossing upon which the accident happened. The court overruled appellant's exceptions and the appellant excepted to the action of the court. While D. M. Edwards was on the stand testifying for the appellees he was permitted, over the objection of the appellant, to testify that there was no whistling post, properly marked, standing 80 rods east of the crossing upon which the accident happened at the time of the accident. Appellant objected to this testimony, for the reason that there was no law requiring appellant to keep and maintain a whistling post to notify its agents and servants and employés when to blow the whistle or to commence to ring the bell, and that the admission of this testimony was calculated to mislead and confuse the jury in passing upon the material issues in the case. The objection was by the court overruled, to which action of the court the appellant in open court excepted, and in due season tendered his bill of exception to the trial court, which was approved and was assigned by appellant in his motion for new trial."

The cause having been submitted to the jury on special issues and no explanation made as to the ringing of the bell on the engine, the findings of the jury being favorable to the plaintiff, the majority of the court are of the opinion that no error was made, and they have concluded that the judgment for the plaintiff should be in all things affirmed. The writer dissents, and thinks that the...