Hines v. Wilson

• Court: Texas Court of Appeals
• Writing for the Court: Key
• Citation: Hines v. Wilson, 225 S.W. 275 (Tex. App. 1920)
• Decision Date: 13 October 1920
• Docket Number: (No. 6225.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: HINES, Director General of Railroads, v. WILSON.

225 S.W. 275

HINES, Director General of Railroads, v. WILSON.

(No. 6225.)^*

Court of Civil Appeals of Texas. Austin

October 13, 1920.

Rehearing Denied November 24, 1920.

Appeal from District Court, Milam County; John Watson, Judge.

Suit by J. B. Wilson against W. D. Hines, federal Director General of Railroads. From judgment for plaintiff, defendant appeals. Affirmed.

Chambers & Wallace, of Cameron, and Henderson & Ranson, of Bryan, for appellant.

Robt. M. Lyles and R. B. Pool, both of Cameron, for appellee.

KEY, C. J.

This is a damage suit, the injuries complained of having resulted from a collision of an automobile in which the plaintiff, Wilson, was riding and a train on the International & Great Northern Railroad, where the railroad track crosses Main street in the town of Thorndale. The plaintiff charged in his petition that the employés who were operating the train on the occasion in question were guilty of negligence in several different respects, which charge was denied by the defendant's answer, and a plea of contributory negligence was interposed.

The case was submitted to a jury upon special issues, each and all of which were decided in favor of the plaintiff, and upon such verdict a judgment for $15,000 was rendered for the plaintiff; and the defendant, who had charge of and was operating the International & Great Northern Railroad, has appealed.

The several findings of the jury are supported by testimony, and are adopted by this court as findings of fact. The charge given by the court, including a special charge, requested by appellant, presented the case to the jury fairly and correctly, and no error was committed in the charge given, nor in the refusal of charges requested by appellant.

One of the main contentions of appellant's brief is that the plaintiff was guilty of contributory negligence as a matter of law, and that the court should have so instructed the jury, and directed a verdict in appellant's favor. The proof shows that, on the occasion in question, the plaintiff went to the town of Thorndale on horseback, for the purpose of getting Dr. Lee to come out to his home, two or three miles from Thorndale, to see a sick child of the plaintiff. Dr. Lee lived some distance west of Main street, and near the railroad track. There was a road between his house and the railroad track, which extended east into Thorndale. It was agreed that Dr. Lee was to ride the plaintiff's horse to see the sick child, and as he was starting off Dr. Crockett came by in a Ford car, on his way to Thorndale, and, at the request of Dr. Lee, he allowed the plaintiff to get in his car and ride with him.

In addition to this statement, we copy from appellee's brief the following substantially correct statement:

"Dr. R. H. Crockett testified: `I had occasion to undertake to cross the International & Great Northern crossing on Main street that day. I was traveling in a Ford automobile. It was a one-seated Ford roadster. Mr. J. B. Wilson was riding with me in the car. I took Mr. Wilson in the car with me at Dr. Lee's residence some 400 or 500 yards west of Main street crossing where the accident occurred. When plaintiff got into my car with me, we were traveling east along there at Dr. Lee's house along the road running parallel with the railroad track. * * * I undertook to cross the railroad at Main street crossing about 400 or 500 yards east of Dr. Lee's house. I did not get across the railroad track safely. I was struck by an incoming freight train; at least, the car was struck that I was in. I was thrown violently from the car and partially stunned. * * * I heard some cries of pain, and at the time I heard it I took it to be Mr. Wilson. I know his voice. * * * I recall some structures there. Those buildings obstructed the view of the railroad very much. As I approached the crossing, * * * I slowed almost to a stop and looked and listened. I did not see the train at all. I heard the train just a second before I was hit. I brought my car almost to a standstill before I undertook to cross the railroad. * * * I was running about 12 miles an hour, and after I made the turn I slowed up, and when I got somewhere within 50 feet of the main line I almost stopped. I did not hear any train when I was up at Dr. Lee's. When I was within 50 feet of the track I looked in both directions. At that time there were some freight cars there and I could not see up the track at all. I could not see anything but the freight cars. I remember that very clearly. Those freight cars to the best of my knowledge were on the second line of switches. * * * The cars extended right down to the street on each side practically the width of the street between the cars. * * * I heard the roar of the train just about the instant it struck me. * * * I realized that the train was going to hit me just about like this (snapping his fingers). I heard the roar and it hit me; you might say at the same instant. I did not hear any bell ringing and did not hear any whistle. My hearing is good and has been all the time. * * * I saw Mr. Wilson lean forward as though he was trying to see a train. I asked Mr. Wilson to look for a train, and he then leaned forward. There was no passenger train due at that time. * * * To the best of my memory it would have been two or three hours before a passenger train was due there. The train that struck me was not a regular train; it was an extra.'

"Appellee, J. B. Wilson, testified: `I took my horse up there and left him there (at Lee's residence). Dr. Lee was ready to go, and he got on the horse and started off, and just as he started Dr. Crockett came along in his car, and Dr. Lee hollered at him to stop, and I knew he wanted me to ride up with Dr. Crockett to town, and I hollered at Dr. Lee that I had rather walk, but Dr. Crockett stopped his car, and I went and got in the car with...