International & G. N. Ry. Co. v. Mallard

• Decision Date: 10 December 1925
• Docket Number: (No. 721-4287.)
• Citation: 277 S.W. 1051
• Parties: INTERNATIONAL & G. N. RY. CO. v. MALLARD.
• Court: Texas Supreme Court

277 S.W. 1051

INTERNATIONAL & G. N. RY. CO. v. MALLARD.

(No. 721-4287.)

Commission of Appeals of Texas, Section A.

December 10, 1925.

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

Action by W. E. Mallard against the International & Great Northern Railway Company. Judgment for plaintiff was affirmed in 262 S. W. 789, and defendant brings error. Affirmed.

Morris, Sewell & Morris and Samuel B. Dobney, all of Houston, for plaintiff in error.

J. D. Pickett, of Palestine, for defendant in error.

NICKELS, J.

Mallard sued, and recovered judgment, for personal and property injuries incurred as a result of a collision between his automobile and a locomotive, etc., operated by Baker as receiver of the International & Great Northern Railway Company, predecessor, under articles 6624, 6625, R. S. 1911, of plaintiff in error. The judgment was affirmed by the honorable Court of Civil Appeals. 262 S. W. 789.

The case is here on jurisdictional questions of substantial identity with those raised and overruled by the Court of Civil Appeals in I. & G. N. R. R. Co. v. Ochler, 262 S. W. 785, and upon a contention that Mallard was, as a matter of law, guilty of contributory negligence (which proximately caused or helped to cause the injuries), in that he did not reduce the speed of his car as he approached the railroad track to six miles per hour, as required by the terms of article 820l, Vernon's Tex. Civ. & Crim. Stat. 1918 Supp.

The Supreme Court denied writ of error in I. & G. N. R. R. Co. v. Ochler, supra, and because of this we regard that case as being determinative of the jurisdictional questions now presented. Hence we express no further opinion in respect thereto.

The railroad company asserts that Mallard violated the terms of article 800, Penal Code 1925 (section 17, chapter 207, Acts of 1917), quoted at length in the opinion of the honorable Court of Civil Appeals, and, consequently, that he was guilty of such contributory negligence as precludes his recovery.

The statute pleaded, and whose violation is thus interposed as contributory negligence, prescribes no standard or rule of conduct. It lacks that degree of certainty essential to a law. As applicable to the driver of a car as he approaches a railroad crossing, it affords only a subject to debate, in his mind, as to whether the contour, et cetera, of the landscape is such as to require him to change his plan. If he determines that the facts require a change, he must then decide upon the point at which reduction of speed is demanded. Moreover, he may be so circumstanced as to require a definite and irrevocable finding by him of a fact about which he may not know anything; that is to say, there may be near the crossing a person having the appearance of a flagman, and whose conduct (inadvertently, perhaps) may indicate the "way is clear," but, if that person be not a flagman, or his supposed "signals" be something else, the driver would be held to scorn the law if he, in best of faith, act upon the appearances. Rules of conduct, we believe, cannot rightly be predicated upon such ambiguous conditions. The statute is essentially Caliguan — lacking in that definiteness necessary to due process — and therefore void, whether it be regarded as a criminal law in the strict sense or a remedial enactment. State v. Foster, 31 Tex. 578; Augustine v. State, 41 Tex. Cr. R. 59, 52 S. W. 77, 96 Am. St. Rep. 765; Cogdell v. State (Tex. Cr. App.) 193 S. W. 675; Russell v. State, 88 Tex. Cr. R. 512, 228 S. W. 566; Snider v. State, 89 Tex. Cr. R. 192, 230 S. W. 146; Graham v. Hines (Tex. Civ. App.) 240 S. W. 1015; Griffin v. State, 86 Tex. Cr. R. 498, 218 S. W. 494; Cook v. State, 26 Ind. App. 278, 59 N. E. 489; Strickland v. Whatley, 142 Ga. 802, 83 S. E. 856; Elsbery v. State, 12 Ga. App. 86, 76 S. E. 779; U. S. v. Capitol Traction Co., 34 App. D. C. 592, 19 Ann. Cas. 68; Tozer v. U. S. (C. C.) 52 F. 919; Ex parte Jackson, 45 Ark. 164; Brill's Cyclopedia of Criminal Law, vol. 1, p. 132.

The vice of the so-called law finds illustration in the fact that our Court of Civil Appeals, composed of erudite, able, and distinguished judges, have encountered great difficulty in arriving at any construction of the act which gives it a meaning, and by the fact that two of those courts (in T. & N. O. Ry. Co. v. Harrington [Tex. Civ. App.] 209 S. W. 685, and in S. A. & A. P. Ry. Co. v. Singletary [Tex. Civ. App.] 251 S. W. 325) interpreted it as meaning one thing while two others of those courts (in Schaff v. Bearden [Tex. Civ. App.] 211 S. W. 503, and Graham v. Hines, supra) reached the conclusion it meant something else. The difficulty which those courts have met emphasizes the basic injustice of conditioning the citizen's rights upon his ability (on the instant) to parse the language used and glean some correct meaning from its ambiguities. Bad grammar (the rather, lack of grammar) of itself affords no constitutional objection to a statute; but where, as here, a variety of possible meanings results, there is, in contemplation of law, no meaning at all.

The general object at which the...