Houston, E. & W. T. Ry. Co. v. Sherman, 1086-5314.

• Decision Date: 14 October 1931
• Docket Number: No. 1086-5314.,1086-5314.
• Citation: 42 S.W.2d 241
• Parties: HOUSTON, E. & W. T. RY. CO. v. SHERMAN et al.
• Court: Texas Supreme Court

42 S.W.2d 241

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

No. 1086-5314.

Commission of Appeals of Texas, Section B.

October 14, 1931.

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

Suit by Mrs. Settie Sherman and others against the Houston East & West Texas Railway Company. Judgment for plaintiffs was affirmed by the Court of Civil Appeals [10 S. W.(2d) 243], and defendant brings error.

Reversed and remanded.

Baker, Botts, Parker & Garwood, Stevens & Stevens, and Garrison & Watson, all of Houston, and F. J. & C. T. Duff, of Beaumont, for plaintiff in error.

Smith, Combs & Matthews, of Liberty, for defendants in error.

RYAN, J.

This suit was instituted in the district court of Liberty county by Mrs. Settie Sherman in her own right and as next friend for her seven minor children, against the railway company, to recover damages for the death of J. S. Sherman, her husband and the father of said minors, as the result of a collision between a Ford truck driven by the deceased and a passenger train operated by the railway company, at a public road crossing, occasioned by the alleged negligence of said company.

The grounds of the company's negligence relied on by plaintiffs may be succinctly stated as follows: (a) In failing to properly construct and maintain said crossing, as to make it safe and convenient for the use of the traveling public; (b) in failing to sound the whistle, as required by law, at least 80 rods before reaching said crossing; (c) in failing to ring the bell on said locomotive at least 80 rods before reaching the said crossing and continuing to ring the same until the engine had crossed over it; (d) in failing to exercise ordinary care and to use all the means within the power of the road's operating agents, servants and employees, to avoid said collision and to save the life of the said J. S. Sherman after they saw him in a perilous position and realized his danger; (e) in failing to exercise ordinary care in approaching said crossing, in that the engineer, fireman, and other employees having charge of said passenger train failed to keep a proper lookout ahead for the deceased or for other persons on or about to go upon said crossing and to give the necessary warning signals of the approach of said passenger train; (f) in failing to reduce the speed of said train after they saw and realized the peril in which the said Sherman was situated, which they could easily have done in the exercise of ordinary care and saved his life.

Plaintiffs then allege the amount of their damages as $70,250, for which they sued.

The defendant railway company answered by general demurrer, general denial, that the road traveled by the deceased was not a public road, but a private road constructed specially for the use and benefit of the owners of lands adjoining each side of the right of way, had never been dedicated to public use or recognized by the commissioner's court of Liberty or San Jacinto counties, and was not such a road under the law as to require compliance with the statutory duties of blowing the whistle and ringing the bell eighty rods from the crossing, and by a special plea of contributory negligence.

By supplemental petition, plaintiffs below alleged that said road was a public road by prescription and use, that the crossing across its track was opened and maintained by the railway company for the use of the public, and the road has been for more than fifteen years, and is, freely used and traveled by the general public by and with the consent of the landowners across whose land said road extends.

At the close of the evidence, the railway company 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: (1) That the road upon which the crossing where the collision occurred was a public road at the time of the accident; (2) that said crossing was being used by the public with the knowledge and consent of the railway company prior to and at the time of the accident; (3) that the operators of the train did not blow the whistle at least eighty rods from said crossing, and sufficiently near to same, to be reasonably calculated to give warning to persons about to use it; (4) that such failure to blow the whistle was negligence; and (5) a proximate cause of the collision and death of J. S. Sherman; (6) that the operatives of the train did not, upon approaching the crossing in question, begin to ring the bell at least eighty rods from said crossing and continue to ring the same until the crossing was reached, (7) which was negligence, and (8) a proximate cause of Sherman's death; (9) that the engineer, fireman, and other employees having charge of the train failed to keep a proper lookout for the deceased or other persons on or about to go upon said crossing which (10) was negligence, and (11) a proximate cause of the collision and death of said Sherman; (12) that the engineer in charge of and operating the train in question failed to exercise ordinary care to use all the effective means within his power, consistent with the safety of the train and passengers, to avoid the collision after he discovered the deceased about to go upon the crossing and realized his danger, which (13) was negligence, and (14) a proximate cause of the collision and death of the deceased.

In answer to special issue No. 15, the jury answered that the deceased, as he approached the crossing in question, did not fail to stop his truck a safe distance from said crossing, after he had entered upon the right of way, for the purpose of looking and listening for the approaching train. The effect of this answer was that the deceased did stop his truck a safe distance from the crossing, after he had entered upon the right of way, for the purpose of looking and listening for the approaching train.

The court then, conditioned upon the jury answering special issue No. 15 in the affirmative (instead of in the negative as they did answer it), submitted special issue No. 16 as follows: "Was the deceased in not stopping his car for the purpose of looking and listening for said train, after he entered upon the right of way, and as he approached the crossing, negligent as that term has been herein (in the charge) defined?" The jury answered: "No."

The court then, conditioned upon the jury answering special issue No. 16 in the affirmative (instead of in the negative as they did answer it), submitted special issue No. 17, as follows: "Was such negligence on the part of the deceased in failing to stop his car, after he entered upon the right of way, for the purpose of looking and listening for the approaching train, a proximate or contributing cause of the death of the deceased?" The jury answered: "No."

Special issue No. 18 was as follows: "Did the deceased as he approached the crossing in his truck after entering upon the right of way and within a reasonable distance from the crossing, fail to look for an approaching train?" The jury answered: "No." The effect of this answer, of course was that the deceased did look for an approaching train.

The court then conditioned upon the jury answering said issue No. 18 in the affirmative (instead of in the negative as they did answer it) submitted special issue No. 19 as follows: "Was the failure of the deceased to look for the approaching train after entering upon the right of way negligence as that term has been defined?" which the jury answered: "No."

Conditioned upon issue No. 19 being answered in the affirmative issue No. 20 was submitted viz.: "Was such negligence on the part of said J. S. Sherman a proximate or contributing cause of his death?" which was answered: "No."

Then in answer to issue No. 21 the jury found that the deceased did not fail to listen for the approaching train—the effect of which was that he did so listen.

Conditioned upon issue No. 21 being answered in the affirmative issue No. 22 answered "No" by the jury was submitted as follows: "Was such failure on the part of the deceased to listen for the approaching train, negligence?" and, conditioned on said issue No. 22 being answered "Yes," issue No. 23 was submitted as follows: "Was such negligence, if any you have found, a proximate cause of the collision and death of J. S. Sherman?" which the jury answered: "No."

The jury assessed total damages against the railway company in the sum of $45,000, of which $24,000 was apportioned to the widow and $3,000 to each of the seven minor children.

The trial court accordingly so rendered judgment for the plaintiffs against the railway company, which was affirmed by the Court of Civil Appeals. 10 S.W.(2d) 243.

Plaintiff in error's first assignment in its application for writ of error to the Supreme Court complains of the trial court's refusal to peremptorily instruct a verdict for it, on the ground that the deceased, with an unobstructed view, drove upon the track in front of an approaching train, and was therefore guilty of contributory negligence, as a matter of law. The question of contributory negligence was appropriately submitted to the jury, and they found against the company's contention, based on sufficient evidence to go to the jury on that issue.

The Court of Civil Appeals has, at some length, detailed this evidence , which it is unnecessary to repeat here.

What is said above applies to plaintiff in error's second assignment of error to the effect that the deceased was guilty of contributory negligence as a matter of law, in that the jury having found that, after entering upon the right of way, he stopped his truck, looked and listened, he must have seen the approaching train. This, like the first assignment, is based upon the assumption that the evidence is undisputed that the deceased, after he entered the right of way, had a clear view of the approaching train, which assumption is incorrect, in that the evidence shows there were...