International & G. N. R. Co. v. Edwards

• Decision Date: 22 November 1905
• Citation: 91 S.W. 640
• Parties: INTERNATIONAL & G. N. R. CO. v. EDWARDS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

91 S.W. 640

INTERNATIONAL & G. N. R. CO. v. EDWARDS.^*

Court of Civil Appeals of Texas.

November 22, 1905.

Rehearing Denied January 10, 1906.

Appeal from District Court, McLennan County; Marshall Surratt, Judge.

Action by Will Edwards against the International & Great Northern Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

N. A. Stedman and Baker & Thomas, for appellant. S. E. Stratton and J. E. Yantis, for appellee.

EIDSON, J.

This is a suit by appellee against appellant for damages on account of personal injuries alleged to have been sustained by him at a public crossing on appellant's road through appellant's negligence: the alleged acts of negligence being the high rate of speed at which the train was being operated, the failure to blow the whistle at least 80 rods from the crossing, and the failure to ring the bell until it crossed. Appellant answered by general denial and a special plea of contributory negligence on the part of appellee. The trial-before the court and jury resulted in a verdict and judgment for appellee in the sum of $500.

Appellant's third assignment of error complains of the verdict of the jury upon the ground that same was contrary to the evidence, in that the preponderance of the evidence tends to show that the defendant exercised ordinary care, and was not guilty of negligence. Appellant admits that the evidence was conflicting as to whether the bell was rung and the whistle was blown. This being true, it was peculiarly the province of the jury to determine as to this conflict, and their verdict settles same in favor of appellee. This court is not authorized to reverse a case upon a mere preponderance of the testimony. Anderson v. Wharton Co. (Tex. Civ. App.) 65 S. W. 643; Railway Co. v. Robinson, 79 Tex. 611, 15 S. W. 584; Rainbolt v. March, 52 Tex. 251; Taylor v. Brown (Tex. Civ. App.) 39 S. W. 312; Railway Co. v. Daggett, 87 Tex. 327, 28 S. W. 525; Railway Co. v. Levine, 87 Tex. 439, 29 S. W. 466.

By its fourth assignment of error appellant contends that the evidence shows that appellee was guilty of contributory negligence as a matter of law. We do not agree with this contention of appellant. While it is true appellee's testimony shows that, if he had looked or listened, he would have discovered the approach of the train in time to have avoided the collision, he also testified that he did not know of the approach of the train until he was on the track, and the train was within about 10 steps of him, when it was too late for him to escape injury, and that in approaching the crossing his back was in the direction of the approaching train, and that he did not know the train was coming; he had not heard and did not see it; that he heard no bell rung nor whistle blown, and that, if either had occurred within a quarter of a mile of the crossing, he would have heard it; that he did not look for the train, because he did not hear any bell nor any whistle, and did not think there was any train there; that he knew it was their duty to ring the bell and blow the whistle at the crossing, and he was depending on their performing this duty. On cross-examination he stated that he knew that the train was due there some time along about 8 o'clock, but did not know exactly what time; but there is no testimony in the record showing that he knew that the train was due at that place at the time of the accident, or that he knew that it was about 8 o'clock at the time of the accident. There is other testimony in the record tending to show that the bell was not rung and the whistle was not blown, as required by law. We think there was sufficient testimony to justify the court in submitting to the jury the issue of contributory negligence on the part of appellee, and to warrant the jury in finding that he was not guilty of such negligence. We do not think that the mere fact that a person approaching or in the act of passing over a public crossing fails to look or listen for trains would as a matter of law render him guilty of contributory negligence; but this fact should be considered in connection with the other surrounding and attendant facts and circumstances of the case in determining the question of contributory negligence vel non. When the circumstances are such that a person of ordinary prudence, in passing over or approaching a public crossing, would not look or listen, then it would not be negligence to fail to look or listen....