International-Great Northern R. Co. v. Acker

• Decision Date: 10 March 1939
• Docket Number: No. 1864.,1864.
• Parties: INTERNATIONAL-GREAT NORTHERN R. CO. et al. v. ACKER et al.
• Court: Texas Court of Appeals

128 S.W.2d 506

INTERNATIONAL-GREAT NORTHERN R. CO. et al. v. ACKER et al.

No. 1864.

Court of Civil Appeals of Texas. Eastland.

March 10, 1939.

Rehearing Denied May 19, 1939.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Cherokee County; C. E. Brazil, Judge.

Suit by C. D. Acker, as guardian of the estate of Ruth, Doris and Charles Gourley minors, and as administrator of the estate of J. C. Gourley, deceased, and others, against the International-Great Northern Railroad Company and Guy A. Thompson, trustee thereof, for the death of J. C. Gourley allegedly caused by negligent collision of train with automobile. From a judgment on a verdict for plaintiffs, defendants appeal.

Affirmed.

Andrews, Kelley, Kurth & Campbell and Sewell, Taylor, Morris & Garwood, all of Houston, for appellants.

Smithdeal, Shook & Lefkowitz, of Dallas, and Norman, Stone & Norman and H T. Brown, all of Jacksonville, for appellees.

LESLIE, Chief Justice.

This suit was instituted by C. D. Acker, as guardian of the estate of Ruth, Doris and Charles Gourley, minors; and as administrator of the estate of J. C. Gourley, deceased; Mary Gourley, Ruby Gourley Heaton et vir; H. H. Gourley et ux, to recover damages from International-Great Northern Railroad Company and Guy A. Thompson, Trustee thereof, for the death of J. C. Gourley, alleged to be the result of negligent collision (2/16/36) at public crossing by defendants' passenger train with automobile being operated by J. C. Gourley, who, together with wife and infant child were killed.

Defendants answered, alleging many grounds of contributory negligence. In the trial the court submitted the case to the jury on 85 special issues. The verdict acquitted plaintiffs of contributory negligence, but found negligence and proximate cause on part of defendants with respect to defendants' failure (1) to keep and maintain crossing in proper state of repair; (2) blow the whistle; (3) ring the bell; (4) excessive rate of speed; (5) failure to keep proper lookout; and (6) failure to use ordinary care after discovery of peril, etc. Issues 22 to 81, both inclusive, covered questions of contributory negligence charged against J. C. Gourley and wife. From judgment on the verdict for plaintiffs, defendants appeal, presenting 539 assignments of error, under 41 propositions.

Appellants' first proposition is dual in nature, asserting there is no evidence to support a favorable finding for plaintiffs on either contributory negligence or discovered peril, and that pleadings also are insufficient on the latter issue. The pleadings are deemed sufficient and if the pleadings and the testimony raise the issue of discovered peril and the jury finds upon that issue in favor of the injured party, the issues of primary negligence and contributory negligence become immaterial. Wilson v. Southern Traction Co., 111 Tex. 361, 234 S.W. 663; Dallas Ry. & Terminal Co. v. Bankston, Tex.Com.App., 51 S.W. 2d 304; St. Louis, B. & M. R. Co. v. Cole, Tex.Com.App., 14 S.W.2d 1024; 30 Tex.Jur. p. 684, sec. 35, et seq.

In passing on the questions presented by the proposition, a proper appraisal of the testimony requires an appellate court to consider all the evidence in the light most favorable to the party obtaining the verdict, and from the standpoint of the injured party just before and at the time of the accident, rejecting all evidence favorable to the defendants. Kirksey v. Southern Traction Co., 110 Tex. 190, 217 S.W. 139; Barron v. Houston E. & W. T. R. Co., Tex.Com.App., 249 S.W. 825; Missouri, K. & T. R. Co. v. Merchant, Tex. Com.App., 231 S.W. 327; Jones v. Louisiana Western R. Co., Tex.Com.App., 243 S.W. 976; Lee v. International & G. N. R. Co., 89 Tex. 583, 588, 36 S.W. 63.

In effect, these authorities announce the rule that the law presumes that one killed at a railroad crossing was doing whatever was reasonably necessary for his own safety, and the defendant sued for his death must prove that he (injured party) was not so doing, in order to relieve itself of the consequences of its failure to give crossing signals. Such presumption in favor of deceased would be greatly strengthened by the circumstance that he would be less likely to expose to disaster a wife and infant daughter and deprive his other children of their parents.

A test of liability is whether or not under the circumstances a reasonably prudent person in Gourley's situation would have done substantially as he did on the occasion of the accident. If reasonable minds may differ as to whether Gourley exercised ordinary care, or whether the defendants actually discovered the perilous situation of the deceased in time to have averted—by the use of all means at their command, commensurate with the safety of themselves and other passengers, etc.,—injury to him, and failed thereafter to use ordinary care to do so, then the question of contributory negligence, as well as the issue of discovered peril would, respectively, become a question of fact for the jury. Kirksey v. Southern Traction Co., 110 Tex. 190, 217 S.W. 139; Trochta v. Missouri K. & T. R. Co. Tex.Com.App., 218 S.W. 1038; Ft. Worth & R. G. R. Co. v. Bowen, 95 Tex. 364, 67 S.W. 408; Barron v. Houston, E. & W. T. R. Co. Tex.Com.App., 249 S.W. 825.

As said in the Trochta case : "To relieve defendant of liability on the ground that the engineer did what he thought proper in the emergency to avoid the injury would, in effect, abolish the doctrine of discovered peril, except in cases of willful injury. The test of liability is not whether the engineer after discovering the peril of deceased acted in good faith in an effort to avoid the injury, but whether he acted as a man of ordinary prudence would have acted under the circumstances."

In many respects the testimony relating to contributory negligence and discovered peril is common and incapable of separate grouping. In appraising the testimony on these questions, it should be borne in mind that appellants do not challenge the jury's findings which establish the following facts: (1) defendants' failure to keep and maintain crossing in proper state of repair and that it was a proximate cause of Gourley's death; (2) that the defendant failed to blow the whistle at 80 rods, etc., from crossing, and that this was a proximate cause of his death; (3) that defendants failed to ring the bell at 80 rods, etc., and that this was proximate cause of the death; and (4) that train was running 60 miles an hour at time of collision that this rate was negligence under the circumstances and a proximate cause of the death. The conduct of Gourley and wife at the time of the accident should be examined in the light of such established facts in determining whether or not they were then guilty of contributory negligence.

In substance, the evidence discloses that the parents of J. C. Gourley had resided at Troup, Texas, for about twenty years, and on the day of his death he was visiting them as he had often done through the years. Shortly before the accident, he, with his wife and child, left the home of his parents in a new Ford V-8 and traveled westerly on county line road about 400 yards, where, on reaching right-of-way of defendant, he turned north on a dirt road paralleling the railroad track and proceeded about 1,200 feet to a point where he turned from that road into a street or public highway crossing the defendants' railroad track. As he undertook to pass over the track (February 16, 1936) he was struck by defendants' north bound passenger train, known as the Sunshine Special. The collision occurred at 4:58 p.m. at a public crossing, in the city limits of Troup.

From center of railroad track to center of parallel dirt road is about 62 feet. The day was cold. The windows of the car were up and the wind was blowing from the north. For some distance before reaching the turn to make the crossing and for several feet after the turn, the view to the rear (south), or in the direction of the approaching train, was in a measure obstructed partly because the view was to the rear, partly because the train approached through a cut, and partly by a shoulder or embankment on the right-of-way near the public road and between that road and the railroad track. Until the turn to make the crossing any view the driver or occupant of the car would have of such approaching train would necessarily be gained by casting the eyes backward over the shoulder in such direction.

For about a mile south of the crossing the track was up-grade 1.1 per cent; that is, 1.1 feet to every 100 feet of track. On this day the train was late. After the collision it stopped at 4:58 p.m. That was its leaving time from Troup station, 1,896 feet north of the crossing. To have been on time it should have arrived "two to five minutes" before that time.

J. D. Davis, witness for defendant, testified "it was due to leave at 4:58, arrive two or three minutes ahead of that. Well, it was really late, because it was due to stay five minutes." Further, that at the time of the accident a south bound motor car or train was standing in the yard at the station. That it was propelled by power generated by gasoline and that smoke and noise were emanating from its motor. That it was due to proceed south over the same track at five o'clock p.m., or "as soon as the passengers got off the Sunshine."

Concerning the motor car at the station, another witness testified that he noticed it a minute or so before the collision, that it was or had been switching and was headed south, that "steam" was coming out of the locomotive. This, of course, was in the range of vision of one passing over or near the crossing. Had the Sunshine Special been on time it would evidently have cleared the crossing before the arrival of Gourley. The possibility that Gourley may have seen or heard the south bound motor car at the station and took it to be the north bound train on time is merely a circumstance to be...