International-Great Northern R. Co. v. Pence, No. 3618.

• Court: Court of Appeals of Texas
• Writing for the Court: Nealon
• Citation: 113 S.W.2d 206
• Decision Date: 20 January 1938
• Docket Number: No. 3618.
• Parties: INTERNATIONAL-GREAT NORTHERN R. CO. v. PENCE et al.

113 S.W.2d 206 INTERNATIONAL-GREAT NORTHERN R. CO.
v.
PENCE et al. No. 3618. Court of Civil Appeals of Texas. El Paso. January 20, 1938. Rehearing Denied February 10, 1938.

Page 207

Appeal from District Court, Rusk County; Nat W. Brooks, Judge.

Suit arising out of collision between truck and railroad engine by J. J. Pence, guardian of the person and estate of Nellie Gean Russell, a minor, and others, against the International-Great Northern Railroad Company, for injuries to the person and for wrongful death. From a judgment on a verdict for plaintiffs, other than plaintiff Mrs. J. W. Anderson, defendant appeals.

Affirmed.

Andrews, Kelley, Kurth & Campbell and Sewell, Taylor, Morris & Garwood, all of Houston (W. J. Knight, of Houston, of counsel), for appellant.

Jones & Jones, of Marshall, and Smith & West, of Henderson, for appellees.

NEALON, Chief Justice.

This suit was brought in the district court of Rusk county against appellant by J. J. Pence, guardian of the person and estate of Nellie Gean Russell, a minor, and by J. E. Russell and his wife, Belle Russell, and Mrs. J. W. Anderson, to recover damages for injuries to the person of Nellie Gean Russell and for the death of her parents, Fred Russell and Anna Belle Russell. J. E. Russell and Belle Russell are the mother and father of Fred Russell, deceased. Mrs. J. W. Anderson is the widowed mother of Mrs. Anna Belle Russell, deceased.

The suit was based upon a collision occurring on a crossing near Overton, in Smith county, Tex., on or about the 10th day of March, 1933, in which a truck occupied by Fred Russell, his wife, Anna Belle Russell, and his three children, Nellie Gean, Willie Murrell, and Oscar Earl, was struck by an engine operated by the defendant. The two last-named children died before the suit was filed.

The plaintiffs alleged a general count of negligence, and in the alternative alleged various specific acts of negligence on the part of the defendant, and affirmatively pleaded the theory of discovered peril. The defendant pleaded certain specific exceptions, a general demurrer, and numerous specific acts of contributory negligence on the part of Fred Russell and Anna Belle Russell.

Upon the trial, evidence was produced by the plaintiffs to show the acts of negligence on the part of the defendant, and that defendant discovered the deceased persons in a position of peril in time to have avoided the accident by the exercise of the means at hand consistent with the safety of the engine and the occupants thereof. There were no cars attached to the engine. The defendant presented evidence to the effect that the defendant was not negligent; that plaintiffs were guilty of contributory negligence; and that the theory of discovered peril had no application.

The case was submitted to the jury upon special issues, involving the theory of discovered peril, various alleged acts of negligence on the part of the defendant, and various alleged acts of negligence on the part of the occupants of the truck. The court submitted also an issue asking whether or not the act of Fred Russell in driving the truck upon the track immediately in front of the locomotive, if he did so act, was the sole proximate cause of the injury.

The jury found in favor of plaintiffs upon the various issues of negligence and contributory negligence and the issue of discovered peril, and also found that the collision was not an unavoidable accident. As to damages the jury awarded Nellie Gean Russell $15,000 on account of the death of her father, $10,000 on account of the death of her mother and $2,000 on account of injuries to her person.

Page 208

Plaintiffs J. E. and Belle Russell were each awarded $250 on account of the death of Fred Russell.

Upon these findings of the jury, the court entered judgment in favor of the plaintiffs, other than Mrs. J. W. Anderson, and awarded them damages as found by the jury. The court overruled the defendant's motion for new trial.

Defendant appealed from said judgment.

Opinion.

The record in this case is quite voluminous. It contains a transcript comprising 256 pages and a statement of facts consisting of 288 pages. The court submitted 47 special issues in its main charge, two special issues at the request of plaintiff, and one at the request of defendant. Defendant filed 28 objections to the court's charge and submitted 84 specially requested issues. Thirty-eight propositions are urged by appellant in support of its various assignments.

The first ten propositions assert that the court erred in failing upon proper request, or as suggested by proper request, to submit issues as to whether the sole proximate cause of the collision was conduct of Anna Belle Russell in each of the following particulars: Negligent failure to keep a lookout for the approaching locomotive; negligent failure to listen for the approaching locomotive; attempting to drive the automobile across the railroad track when it was in danger of being struck by the locomotive; suddenly driving the automobile upon the railroad track in front of the locomotive; driving the automobile upon the track at a time when the operators of the locomotive could not, in the exercise of ordinary care, avoid striking the automobile. Propositions 11 to 16, inclusive, charge error in failing under the circumstances to submit whether the sole proximate cause of the collision was the negligence of Fred Russell in the following particulars: Failure to keep a lookout; failure to listen for the approaching locomotive; driving the automobile upon the railroad track when the operators of the locomotive could not in the exercise of ordinary care avoid striking the automobile.

At the time of the collision there were but two adult occupants of the car—Anna Belle Russell and Fred Russell. The other three occupants were children of tender age, none of whom was older than six years. Therefore, the driver of the car was either Anna Belle Russell or Fred Russell. As to which was the driver at the time of the collision there is no certain direct evidence. The circumstantial evidence points to Fred Russell as the driver. He was at the wheel a few minutes before the accident when he got out of the car to open a gate that opened up the road over which he was driving. When last seen by any of the witnesses he was on the left running board. This would indicate that he was about to occupy the driver's seat. Apparently the truck stopped twice—once when Russell opened the gate and again as the driver attempted to drive up the embankment upon which the railroad is situated. Mrs. Russell was not seen to take the wheel or occupy the driver's seat at any time. There is no evidence that she was driving the car at the time of the collision. The trial judge avoided circumlocution and confusion by submitting issues as to keeping a lookout, listening, and driving upon the track in the following forms, to which the following answers were given:

"Special Issue Number Twenty-one: Do you find from a preponderance of the evidence that the driver of the automobile in question failed to bring the same to a complete stop immediately before attempting to pass over the railroad track?" Answer: "No."

"Special Issue Number Twenty-three: Do you find from a preponderance of the evidence that the adult in the automobile, other than the driver, failed to require the driver to stop the same immediately before attempting to cross the track?" Answer: "No."

"Special Issue Number Twenty-five: Do you find from a preponderance of the evidence that the driver of the automobile failed to exercise such care as a person of ordinary prudence would have exercised under the same or similar circumstances, to keep a lookout for the approaching locomotive?" Answer: "No."

"Special Issue Number Twenty-seven: Do you find from a preponderance of the evidence that the adult occupant of the car other than the driver failed to exercise such care as a person of ordinary prudence would have...