James v. Missouri-Kansas-Texas R. Co. of Texas

• Decision Date: 20 July 1944
• Docket Number: No. 2586.,2586.
• Parties: JAMES v. MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS.
• Court: Texas Court of Appeals

Page 921

182 S.W.2d 921

JAMES v. MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS.

No. 2586.

Court of Civil Appeals of Texas. Waco.

July 20, 1944.

Rehearing Denied October 26, 1944.

Appeal from District Court, McLennan County; R. B. Stanford, Judge.

Suit by W. C. James against Missouri-Kansas-Texas Railroad Company of Texas for injuries. From a judgment for defendant, based upon a directed verdict, the plaintiff appeals.

Affirmed.

George Clark and F. R. Valentine, both of Waco, for appellant.

Naman, Howell & Boswell, of Waco, for appellee.

RICE, Chief Justice.

W. C. James instituted this suit against Missouri-Kansas-Texas Railroad Company of Texas to recover damages for personal injuries allegedly suffered by him and proximately caused by the negligence of the defendant. Upon plaintiff's announcement that he had rested his case, the defendant presented to the trial court its written motion for an instructed verdict; the trial court thereupon instructed the jury to return a verdict for defendant, and plaintiff has appealed.

In our opinion plaintiff's pleadings were sufficient in the absence of a special exception, to state a cause of action. Rule 47, Texas Rules of Civil Procedure. Defendant did not question the sufficiency of plaintiff's pleadings either by special exception or by objection to the testimony because without support in the pleadings.

Plaintiff takes the position that he was entitled under the evidence to have submitted to the jury the issues of fact as to: (1) Whether or not the failure of the defendant to place any barrier across the sidewalks at this crossing constituted negligence which proximately caused this plaintiff's injury; (2) whether or not the railroad company's failure to provide any temporary structure across its tracks in the sidewalk line at the place in question constituted negligence causing this appellant's injuries; (3) whether or not the acts of the railroad company in permitting that portion of its ties immediately adjacent to the ditch which it had excavated across the railway lines to be covered with rock and gravel and dirt, constituted negligence under the circumstances which caused the appellant's injuries; and (4) whether or not the failure of the railroad company to provide any character of warning to pedestrians that it was not safe to use the walkway which stood unobstructed and unbarred, constituted negligence which was a proximate cause of the appellant's injuries.

It is the contention of defendant that the judgment of the trial court should be affirmed because: (1) There was no evidence upon which a jury could have based a finding of actionable negligence against it; (2) under all the evidence, plaintiff was familiar with the crossing over defendant railroad, and knew of at least two different routes to his destination which would not have required him to cross the ditch which he was attempting to cross when he fell; and having voluntarily chosen his route, he was not entitled to recover; (3) the condition was open and obvious and plaintiff's fall was due to a miscalculation of his ability to jump the ditch in the manner that he attempted to do so; and (4) because the uncontroverted evidence shows that plaintiff as a matter of law was guilty of contributory negligence which proximately caused or contributed to cause him to fall.

In view of the instructed verdict, it is our duty to disregard all conflicts in the testimony; to consider the evidence adduced in the case in the light most favorable to plaintiff, and to indulge in his favor every intendment reasonably deducible from the evidence. Anglin v. Cisco Mortgage Loan Co., 135 Tex. 188, 141 S.W.2d 935.

When the facts are controverted, or such that different inferences may be reasonably drawn therefrom, an issue of fact is raised; it is only when the evidence is harmonious and consistent, and the circumstances permit of but one conclusion, that the question becomes one of law for the determination of the court. Wininger v. Fort Worth & D. C. R. Co., 105 Tex. 56, 143 S.W. 1150.

The accident occurred within the corporate limits of Waco, Texas, at the intersection of South Third and Jackson Streets. The last mentioned street runs in an east and west direction, and is crossed at right angles by South Third Street. The defendant had four lines of parallel tracks running along Jackson Street and across the intersection above mentioned. On the day in question defendant was engaged in repairing its tracks, and the warning gates were down across South Third Street preventing vehicular traffic from crossing its lines on Jackson Street. There were no warning gates or other obstructions or warnings across the sidewalk along either side of South Third Street to prevent pedestrians from proceeding along said sidewalks and from crossing defendant's lines at said intersection. In making the repairs above referred to defendant had caused the rock and other ballasting materials to be removed from its tracks down to the bottom of the cross-ties. A ditch about 18 inches...