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

• Decision Date: 12 July 1920
• Docket Number: (No. 599.)
• Citation: 224 S.W. 574
• Parties: HOUSTON E. & W. T. RY. CO. et al. v. WILKERSON et al.
• Court: Texas Court of Appeals

224 S.W. 574

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

(No. 599.)

Court of Civil Appeals of Texas. Beaumont.

July 12, 1920.

Rehearing Denied October 13, 1920.

Appeal from District Court, Nacogdoches County; L. D. Quinn, Judge.

Suit by Mrs. Ennie Wilkerson, in her own behalf and as next friend of Bernice Wilkerson and others, against Walker D. Hines, Director General of Railroads, and the Houston East & West Texas Railway Company. Judgment for plaintiffs, and defendants appeal. Affirmed as to the Director General and reversed as to the railroad.

Hodges & Greve, of Nacogdoches, for appellants.

McMeans, Garrison & Pollard, of Houston, and A. A. Seale, of Nacogdoches, for appellees.

HIGHTOWER, C. J.

Mrs. Ennie Wilkerson, surviving widow of Lee Wilkerson, deceased, filed this suit in her own behalf, and also as next friend of Bernice Wilkerson, Zelma Wilkerson, and Joe Wilkerson, minor children of plaintiff and deceased, against Walker D. Hines, in his capacity as Director General of Railroads, and also against the Houston East & West Texas Railway Company, to recover damages sustained by the plaintiffs on account of the death of said Lee Wilkerson, the husband and father, alleged to have been negligently caused by said defendants. The said Lee Wilkerson, on July 16, 1919, met his death in the town of Nacogdoches, by reason of a collision between a southbound passenger train of the Houston East & West Texas Railway Company and Wilkerson's automobile, which occurred at the crossing of Cox street over said railway track in the town of Nacogdoches. Plaintiffs alleged negligence on the part of the defendants in the following respects:

(1) That the agents and servants of defendants in charge of the train which caused the death of Wilkerson failed to blow the locomotive whistle and to ring the engine bell as the engine approached said crossing.

(2) That the agents and servants in charge of the train negligently failed to keep a lookout for persons traveling on said Cox street and making said crossing, and particularly their failure to keep a lookout to see deceased as he was about to cross.

(3) That defendants negligently failed to provide means of warning travelers on said street by the construction and maintenance of gates, crossing or signal bells or the keeping of a flagman there, as required by the ordinances of the city of Nacogdoches.

(4) That defendants negligently operated said train at an excessive and reckless rate of speed, and at a speed in excess of 6 miles an hour, which was in violation of an ordinance of the city of Nacogdoches, which limited such speed to 6 miles an hour.

(5) That the operatives of the train negligently failed to stop the same in time to avoid the collision which resulted in Wilkerson's death, and that defendants were guilty of negligence in not having brakes with which to check said train of the kind and quality required to have stopped said train before it struck the deceased and the automobile in which he was riding.

(6) That the servants of defendants operating said train were wholly incompetent, and had a total disregard for the life of the traveling public, and particularly the deceased, etc.

The defendant Walker D. Hines, Director General answered by general denial and by a special plea of negligence and contributory negligence upon the part of the deceased, Lee Wilkerson, alleging that deceased was driving, or permitted the driving of, his automobile, at and just before the time of the accident, at a careless, reckless, and dangerously high rate of speed, and that he did not, as he approached the crossing, stop, look, or listen for the approaching train, and that had he so stopped, looked, or listened, and had he had his automobile under control, he could easily have seen the approaching train in time to have stopped the automobile and prevented the accident.

The defendant Houston, East & West Texas Railway Company in its answer interposed a general denial, and also alleged generally negligence and contributory negligence of the deceased, and then further pleaded the assumption or control, by the President of the United States, on December 27, 1917, of all systems of transportation, including railroads, and particularly the defendant's railroad, and the exclusive control and operation thereof by the Director General of Railroads at the time in question, and further specially pleaded general order No. 50, promulgated by the Director General, and especially the provision thereof which provides:

"Actions at law, suits in equity and proceedings in admiralty whenever brought in any court based on contract, binding upon the Director General of Railroads, claim for debt or injury to person, or for loss and damage to property, arising since December 31, 1917, and growing out of the possession, use, control or operation of any railroad or system of transportation by the Director General of Railroads, which action, suit or proceedings, but for federal control, might have been brought against the carrier company, shall be brought against Wm. G. McAdoo, Director General of Railroads, and not otherwise: Provided, however, that this order shall not apply to actions, suits or proceedings for the recovery of fines, penalties and forfeitures."

And said defendant also specially pleaded a further provision reading as follows:

"Pleadings in all actions at law, suits in equity or proceedings in admiralty now pending against any carrier company for a cause of action arising since December 31, 1917, based on a cause of action arising from or out of the operation of any railroad or other carrier, may, on application, be amended by substituting the Director General of Railroads for the carrier company as party defendant, and dismissing the company therefrom."

The case was tried with a jury, whose verdict consisted of answers to special issues in the form of interrogatories, and upon the verdict judgment was rendered in favor of the plaintiffs, against both defendants, for the sum of $15,000, which amount was apportioned between them as the jury found should be done.

The jury, in response to special issues submitted to them, found that no signal of the train, while approaching the Cox street crossing, at the time of the collision, was given, either by the whistle being blown or the bell being rung; that at the time of the collision in question the train was being operated at an excessive rate of speed, to wit, 18 miles per hour; that defendants, at the time of the injury and death of Wilkerson, did not maintain at the crossing on Cox street any gate, bell, or flagman to warn travelers of the approach of trains to the crossing; that the failure of the operatives on the engine to blow the whistle and ring the bell, and the failure on the part of the defendant to maintain at said crossing gates, or bells, or a flagman, and the excessive rate of speed at which said train was traveling, became the proximate cause of Lee Wilkerson's death. No other of the allegations of negligence made by the plaintiffs were submitted for the jury's consideration.

Special issue No. 6 submitted by the court for the jury's consideration, and having reference to the defense of contributory negligence, was as follows:

"Do you believe from the evidence that the deceased, Lee Wilkerson, did any act or failed to do any act that contributed to the injury causing his death?"

To this question the jury answered, "No."

Issue No. 6 was immediately followed by this question, propounded by the court to the jury:

"If you should answer the foregoing question `No,' then you need not answer question No. 7, but should you answer said question, `Yes,' then you will answer question No. 7.

"Question No. 7: Did any act or omission of the deceased, Lee Wilkerson, which immediately preceded the injury that resulted in his death, amount to negligence on his part, as that term has been defined to you in this charge?"

There was no answer by the jury to question No. 7.

Immediately following question No. 7, the court submitted for the jury's answer question No. 8, which was as follows:

"If you should answer question No. 7, `No,' then you need not answer question No. 8, but should you answer said question `Yes,' then you will answer question No. 8.

"Question No. 8: Do you believe from the evidence that such act or omission on the part of said Lee Wilkerson was a proximate cause of the injuries received by him?"

There was no answer to this question. In answer to question No. 9, the jury found, in effect, that plaintiffs were entitled to recover $15,000, and stated how it should be apportioned between them.

Upon request of defendants, the court submitted for the consideration of the jury the following special issues:

Special issue A: "At what rate of speed was the automobile running as it approached and was within 30 feet of the main line track of the defendant company?"

To this question the jury answered: "12 miles per hour."

Special issue B: "In what distance could the automobile in which the deceased was driving have been stopped at the rate of speed it was running as it approached the crossing and was within thirty feet of defendants' main line track?"

The jury answered: "20 feet."

Special issue C: "At what distance could a person 30 or 35 feet from the track, see a train approaching the crossing where the accident occurred, from the north?"

The jury answered: "482 feet."

"Special issue D: "At what distance could a person 70 feet from the track see a train approaching the crossing where the accident occurred from the north?"

The jury answered: "125 feet."

Special issue E: "Could, or could not, the deceased, when within a distance of not less than 30 feet from the main line of the defendant company, have seen or heard the train as it approached the crossing, in time to have stopped his automobile so as to have prevented the accident?"

To this question the jury answered: "Yes."

Special issue F: ...