Hulen v. Ives

• Decision Date: 21 January 1926
• Docket Number: (No. 287.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 281 S.W. 350
• Parties: HULEN v. IVES.
• Court: Texas Court of Appeals

281 S.W. 350

HULEN v. IVES.

(No. 287.)^*

Court of Civil Appeals of Texas. Waco.

January 21, 1926.

Rehearing Denied February 18, 1926.

Appeal from District Court, Limestone County; A. M. Blackmon, Judge.

Action by H. L. Ives against John A. Hulen, receiver of the Trinity & Brazos Valley Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Thompson, Barwise & Wharton, of Fort Worth, and C. S. & J. E. Bradley and W. T. Jackson, all of Groesbeck, for appellant.

Reed & Cannon, of Groesbeck, and Spivey & Spivey, of Waco, for appellee.

BARCUS, J.

The opinion heretofore filed in this cause is withdrawn, and this opinion is substituted therefor. Appellee filed suit against appellant as receiver of the Trinity & Brazos Valley Railroad Company to recover damages which he claimed to have sustained by reason of the agents of appellant having negligently operated a train in the town of Teague and struck an automobile which he was driving. Appellee alleged that the agents of appellant were negligent in a number of different acts, among others, that they failed to blow the whistle, failed to ring the bell, and permitted an obstruction to be left on the side of the road which obscured his view, and that each of said acts of negligence was the proximate cause of the injury. Appellant answered by some special exceptions, and alleged that appellee was injured by reason of his own acts of negligence in driving on its tracks in front of an approaching train, alleging in detail several different acts of negligence on the part of appellee. The cause was tried to a jury and submitted on special issues. The court, under separate issues, submitted each act of negligence alleged by appellee which was supported by the evidence. The jury found that there was no obstruction which would or did obscure appellee's view of the approaching train at the place where the injury occurred. It found that the agents of appellant failed to blow the whistle and failed to ring the bell, and that each of said acts was the proximate cause of the injury.

The trial court, in its charge to the jury, defined "proximate cause" as follows:

"`Proximate cause' is that cause which, in a continuing sequence, unbroken by any new or independent cause, produced an event or injury, and but for which the same would not have happened or occurred. By the term `proximate cause' is not meant the last act or cause or the act nearest the injury, but, as stated before, `proximate cause' is a continuing cause, unbroken by any other cause, and such as that the injury or event would not have occurred but for its existence."

Appellant objected to the last paragraph of said definition, wherein and whereby the court attempted to instruct the jury as to what is not proximate cause. It not only objected to the court giving said paragraph, but requested the court, if the same was given, to insert the word "necessarily" before the word "meant," so that the charge would read "is not necessarily meant the last act." The court overruled said objection and refused to so amend its charge. The question as to what is the proximate cause, and as to whether the state of facts proved constitutes the proximate cause, should ordinarily be left for the jury's determination. Jackson v. G. H. & S. A. Ry. Co., 37 S. W. 786, 14 Tex. Civ. App. 685; T. & P. Ry. Co. v. Bigham, 38 S. W. 162, 90 Tex. 223; G. C. & S. F. Ry. Co v. Rowland, 38 S. W. 756, 90 Tex. 365; T. & N. O. R. Co. v. Harrington (Tex. Com. App.) 235 S. W. 188. The collision which caused the injury to appellee occurred in the middle of a clear afternoon in July. The jury found, under an appropriate issue submitted, that there was no obstruction that would have prevented appellee from seeing the approaching train if he had looked. Appellee testified that at the time of the injury he was driving his Ford, going across appellant's track in the town of Teague. The train which struck his automobile was the regular passenger train, going north, and the collision occurred about two blocks before the train reached the depot. He testified that when he approached the railroad crossing he was in low and traveling at a slow speed because the ground on the road he was traveling seemed to be fresh, or soft, crawly sand, and he could hardly get his automobile over it; that he slowed down and listened for the train, but did not hear the bell rung or the whistle blown, and that he did not look toward the south to see whether there was a train coming or not: that it was a clear sunshiny day; that he was driving about 5 miles an hour and could have stopped his car "pretty quick, in something like 10 to 12 feet." He testified:

"My car came mighty near stopping when I was pouring the gas to it up that grade in coming out of the sand. * * * I did not look to my right (south) to see if there was a train coming. * * * I was passing along pretty slow at the time, and when I looked around that was just about the time you might say it was on me. * * * It was getting pretty scary at the time. There wasn't any use getting scared until the negro hollered, `Look out,' and that was the first thing that attracted my attention when I got up there and he hollered at me to look out. I had turned my head, and just as I turned my head it was right on us, and we were right on top of the track. * * * I stopped the car just as the front wheels got across the rails."

The jury, under the definition of proximate cause given by the court, found that the failure to blow the whistle and ring the bell were each the proximate cause of the injury. The trial court, in defining proximate cause, should not attempt to state what is not proximate cause. It is the duty and province of the jury to determine...