Houston E. & W. T. Ry. Co. v. Sherman

• Decision Date: 02 August 1928
• Docket Number: (No. 1679.)
• Citation: 10 S.W.2d 243
• Parties: HOUSTON E. & W. T. RY. CO. v. SHERMAN et al.
• Court: Texas Court of Appeals

Page 243

10 S.W.2d 243

HOUSTON E. & W. T. RY. CO. v. SHERMAN et al.

(No. 1679.)

Court of Civil Appeals of Texas. Beaumont.

August 2, 1928.

Rehearing Denied October 10, 1928.

Appeal from District Court, Liberty County; Thos. B. Coe, Judge.

Action by Mrs. Settie Sherman in her own right and as next friend for her minor children against the Houston East & West Texas Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Garrison & Watson and Baker, Botts, Parker & Garwood, all of Houston, for appellant.

Smith, Combs & Matthews, of Liberty, for appellees.

O'QUINN, J.

Mrs. Settie Sherman sued the appellant in her own right and as next friend of her seven minor children, Jefferson Sherman, Lillie Sherman, Addie Sherman, Madge Sherman, George Sherman, Dellia Sherman, and William Sherman, to recover damages for the death of J. S. Sherman, who was the husband of Mrs. Sherman and the father of said minor children, occasioned by the alleged negligence of appellant. The defendant answered by general demurrer, general denial, and a special plea of contributory negligence.

In their first amended original petition (that upon which they went to trial) appellees alleged that the crossing at which deceased was killed was a public road crossing. Appellant, in its answer, denied that said crossing was a public road crossing, but that in contemplation of law same was a private road crossing.

By supplemental petition appellees answered appellant's denial that the road in question was a public road, and alleged that said road was a public road by prescription and use, and that appellant opened said crossing across its railroad track, and for many years had maintained same for the use of the general public, had openly and notoriously permitted the general public to use said crossing with its knowledge and consent, and that appellant was estopped to deny the public character of said road crossing.

At the close of the evidence appellant requested a peremptory instruction in its favor, which was denied, and the case was submitted to a jury upon special issues, in answer to which they found (a) that the road where deceased was killed was a public road; (b) that the crossing where the accident occurred was being used by the general public with the knowledge and consent of the appellant prior to and at the time of the accident; (c) that the operatives of the train did not sound the whistle or ring the bell for said crossing, and that such failure to blow the whistle and ring the bell was negligence and a proximate cause of the injuries and death of deceased; (d) that the operatives of the train on the occasion in question failed to keep a proper outlook for deceased or other persons who might be on or about to go upon said crossing, and that such failure was negligence and a proximate cause of the injuries and death of deceased; (e) that the engineer in charge of the train in question failed to use ordinary care to use all effective means in his power consistent with the safety of the train and passengers thereon to avoid striking deceased after he had discovered deceased and realized his peril, and that such failure was negligence and a proximate cause of the injuries and death of the deceased; (f) that deceased was not guilty of contributory negligence; and (g) assessed damages against appellant in the sum of $45,000, apportioned $24,000 to Mrs. Settie Sherman and $3,000 to each of the seven minor children. Upon these findings judgment was entered for the plaintiffs. This appeal is from that judgment.

Briefly stated, the facts show that deceased was killed on a road crossing of appellant's railroad by a collision between a Ford truck in which he was traveling and a west-bound passenger train. At the point where the accident occurred, the track ran almost north and south, and was straight for a considerable distance in each direction from the crossing. The deceased was traveling a road that ran practically parallel with the west line of the railroad right of way known as the Shepherd-Cleveland road. Appellant's right of way was fenced, and there was a crossing with gates opening on each side of the right of way, leading on and over the track. Deceased was traveling this road on the west side of the right of way going south. He turned almost at right angles through the west gate and on to the crossing, going east, and was struck by a passenger train and killed. The gates were kept closed and the deceased had to stop his truck outside the right of way at the gate and open the gate in order to cross the track. The nature of the dirt road and the crossing which was being traveled by deceased will be more fully stated and discussed later. The territory about the crossing was the ordinary East Texas wooded country, and there was a sharp contest as to whether there was anything to obstruct the view of the track in the direction from which the train was approaching. This will be more fully discussed later. It was a cloudy day and the wind was blowing from deceased toward the train described as a "typical March wind." Deceased was engaged principally in getting out timbers and car stakes; at the time he was killed he was going after a load of car stakes. The road which turned east from the Shepherd-Cleveland road and crossed the track where deceased was killed ran on east through the settlement on the east side of the railroad track and into what was called the Tarkington Prairie community, and persons living on that side of the track in the Tarkington Prairie community traveled this road over and across the railroad and went either south to Cleveland or north to Shepherd. It does not appear that there was any trading point on the east side of the railroad. The crossing of the road and the gates were made and maintained by the appellant for the benefit of the general public, and had been in use for many years. The train was running very fast, 45 to 50 miles per hour — the engineer testified 48 — and was running a few minutes late. The whistle was not blown nor the bell rung at any point for the crossing. The accident occurred about the middle of the afternoon.

The request for a peremptory instruction was based upon the contention of appellant (1) that the evidence was such that the jury could not legitimately find that the negligence of appellant in failing to ring the bell or blow the whistle proximately caused the death of the deceased, and (2) because it conclusively appeared as a matter of law that the deceased was guilty of negligence. Appellant's first, second, third, and sixth propositions are directed to these contentions.

That the bell was not rung and that the whistle was not blown for the road crossing, as required by article 6371, Revised Civil Statutes 1925, is admitted by appellant, but appellant insists that the road was not a public road, and therefore the crossing was not such as under the law required the bell to be rung or the whistle to be blown. The failure to ring the bell and sound the whistle makes appellant guilty of negligence per se, which, if same was a proximate cause of Sherman's death, rendered appellant liable, provided the road crossing was a public one, and provided further that deceased was not guilty of contributory negligence that was a proximate cause of his death.

The road was never laid out by the commissioners' court nor recognized as a public road by apportioning hands to work it. However, it was a settlement road leading across appellant's line of railroad from the east to the west, connecting with the Shepherd-Cleveland road, which ran practically parallel with appellant's line of railway on the west, and appellant constructed a crossing for the road, and in fencing its track erected gates in its right of way fences through which the road passed over its track, and kept and maintained these gates and this crossing for the benefit of the public, and it was constantly used by the public in traveling from the settlements on either side of the line of railway and for hauling timber. This use of the road by the public and maintenance of the gates and crossing by appellant for the use of the general public had existed for some 20 years, and it was being so used and maintained at the time of the accident. The jury found, in answer to special issue No. 1, that the road was a public road, and, since the use of a road by the public is that which determines its character, we think the finding is amply supported. City of Dublin v. Barrett (Tex. Civ. App.) 242 S. W. 535; Galveston, H. & S. A. R. Co. v. Baudat, 21 Tex. Civ. App. 236, 51 S. W. 541, 543 (writ refused); Gulf, C. & S. F. R. Co. v. Bryant (Tex. Civ. App.) 204 S. W. 443; Bradford v. Moseley (Tex. Com. App.) 223 S. W. 171; Texas & P. Ry. Co. v. Anderson, 2 Willson, Civ. Cas. Ct. App. § 204; Missouri Pac. Ry. Co. v. Bridges, 74 Tex. 520, 12 S. W. 210, 15 Am. St. Rep. 856; Missouri Pac. Ry. Co. v. Lee, 70 Tex. 496, 7 S. W. 857; Houston E. & W. T. R. Co. v. Peterson (Tex. Civ. App.) 227 S. W. 747; Galveston, H. & S. A. R. Co. v. Eaten (Tex. Civ. App.) 44 S. W. 562 (writ refused).

But appellant says that deceased was guilty of contributory negligence as a matter of law, and therefore appellees were not entitled to recover. This contention is but the conclusion of appellant from the facts and circumstances given in the trial of the case. The question of contributory negligence was appropriately submitted to the jury, and they found against appellant's contention. Referring to, without repeating, the facts heretofore stated, we will add that the track was straight for a considerable distance each way from the crossing; that the right of way was about 86 feet wide, it being 42.9 feet from the west gate to the track. At about the point where one would enter the gate on the west there was a depression or hollow some 18 to 24 inches deep, and from that point to the track was up grade about 2 or 3 feet to the track. The...