Jones v. Louisiana Western Ry. Co.

• Decision Date: 04 October 1922
• Docket Number: (No. 338-3704.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 243 S.W. 976
• Parties: JONES et al. v. LOUISIANA WESTERN RY. CO.
• Court: Texas Supreme Court

243 S.W. 976

JONES et al. v. LOUISIANA WESTERN RY. CO.

(No. 338-3704.)^*

Commission of Appeals of Texas, Section A.

October 4, 1922.

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

Action by Mrs. Walter Jones and others against the Louisiana Western Railway Company. Judgment for plaintiffs was reversed and rendered by the Court of Civil Appeals (233 S. W. 363), and plaintiffs bring error. Judgment of the Court of Civil Appeals reversed, and judgment of the district court affirmed.

S. P. Jones, of Marshall, and Smith & Crawford, of Beaumont, for plaintiffs in error.

Baker, Botts, Parker & Garwood, and McMeans, Garrison & Pollard, all of Houston, for defendant in error.

GALLAGHER, J.

Plaintiffs in error, the surviving wife, child, and mother, respectively, of Walter Jones, deceased, brought this suit against the defendant in error to recover damages for the death of deceased which they alleged was caused by the negligence of defendant in error.

The deceased was traveling in a motor delivery truck along the public road from Rayne westward to Crowley in the state of Louisiana. This truck had a top over the driver's seat, the sides of the top being solid so that the view of the driver to the side while sitting behind the steering wheel was obstructed. In order for him to see any great distance at a right angle from the course he was traveling he would have to get from behind such wheel and off the seat or put his head around in front of the side of the top.

The road left Rayne, according to a map in evidence, more than a half mile south of the railroad, and gradually approached the same until at a point about 3½ miles west of Rayne it reached the edge of the right of way about 100 feet south of the railroad track, where it turned and crossed the same at an angle of 64 degrees and then turned west again toward Crowley. Beginning about 50 feet south of the track the road rose to the crossing about 1 foot every 10 feet. The country from this crossing eastward to Rayne was open, cultivated land. A whistling post was located about 1,400 feet east of the crossing and at 2,900 feet east of the crossing the track began a 3-degree curve to the south; the change in direction being about 20 degrees in the aggregate. There was no obstruction to the east except a row of telephone posts about 42 feet from the track on the south. The deceased was familiar with the road and with the crossing. He was traveling about 8 or 10 miles an hour. At or near the row of telephone poles he stopped his truck. At this point, leaning forward without leaving the driver's seat, he could see a train approaching from the east at about 500 feet from the crossing. He could not see a train as far away as the whistling post without leaving the steering wheel. By getting off the seat and looking around the side of the top he could see a train before it reached the whistling post. At any point in the vicinity of the crossing a train could have been seen by a person standing in the road for a distance of 3,600 feet or more. There was testimony that it ought to take from three-fourths to 1½ minutes to start the truck and reach the track from the place where he stopped it. There was testimony that just as the engine and front wheels of the truck were on the track they were struck by a train coming from the east. Deceased was killed in this collision. The train which struck the truck was an especially fast passenger train, known as the "Sunset Limited." It was about an hour late, and was running at the rate of 50 miles an hour. The weather was dry, and the road was dusty. There was a good breeze, and the dust made by the truck was blown toward the track.

The jury, in response to special issues, found:

"(1) That the employés of the defendant, in approaching said crossing, did not blow the whistle of the locomotive for said crossing.

"(2) That the failure of the employés to blow the whistle was the direct and proximate cause of the death of Walter Jones.

"(3) That the employés of the defendant, in approaching said crossing, did not ring the bell of said locomotive for said crossing.

"(4) That the failure of the employés to ring the bell was the direct and proximate cause of the death of Walter Jones.

"(5) That the deceased, Walter Jones, as he approached and was in close proximity to the railroad track, stopped the automobile and looked and listened for the approach of a train.

"(6) That the said Walter Jones did not see or hear the train, nor could he, by the exercise of ordinary care, have seen or heard the train.

"(7) That the deceased, Walter Jones, used ordinary care in attempting to cross the railroad track to discover the approach of a train and to protect himself from injury from the same.

"(8) That the failure of the deceased, Walter Jones, to use ordinary care in attempting to cross the railroad track was not the direct and proximate cause of his death."

Damages were found by the jury in the sum of $21,000, $1,000 of which was apportioned to the mother, $6,000 to the widow, and $14,000 to the minor child of the deceased. Judgment was entered in accordance with the verdict.

The railway company appealed. The Court of Civil Appeals held the evidence sufficient to sustain all the findings of the jury upon the issues of negligence on the part of the railway company in the operation of the train, and that the amount of damages found by the jury were not so excessive as to authorize them to conclude that it was the result of passion, prejudice, or other improper motive. That court, however, held that deceased was, under the evidence, guilty of such contributory negligence as to preclude a recovery, and reversed the judgment of the trial court, and rendered judgment for the railway company. 233 S. W. 363. A writ of error was granted on application of the said surviving wife, child, and mother of the deceased.

It was admitted that the laws of Louisiana authorize a recovery of damages against railway companies for negligently killing persons substantially the same as the laws of Texas. The laws of the state of Louisiana were proved by depositions of practicing lawyers of that state, who qualified as capable of speaking concerning the same. It was shown by such depositions that under the practice in that state, the verdict of the jury is not binding on the Supreme Court on an issue of fact, and that that court, on appeal, ascertains the facts from the evidence for itself. Testimony introduced by defendant in error concerning the reciprocal rights and duties of railways and travelers at public crossings cited the cases of Callery v. Ry. & S. S. Co., 139 La. 763, 72 South. 222, Perrin v. Terminal Co., 140 La. 818, 74 South. 160, Foreman v. Railway, 140 La. 389, 73 South. 242, Barnett v. Railway Co., 141 La. 698, 75 South. 649, L. R. A. 1917E, 1124, and Harrison v. Railway, 132 La. 762, 61 South. 782, as correctly expressing the law on that subject. The published reports of these cases show that the Supreme Court in each case made its findings as a basis for disposition of the respective appeals without reference to any findings of fact by court or jury in the trial below, and apparently without distinction between findings of negligence or contributory negligence as a fact and findings of such issues as a matter of law. It is therefore apparent that there is a radical difference between the procedure in courts of that state and in the courts of this state in the trial of such cases and their consideration on appeal.

The deceased and plaintiffs in error were citizens of Louisiana at the time he was killed. The accident in which he lost his life happened in that state. Our statute provides that whenever the death of a citizen in another state has been caused by the wrongful act, neglect, or default of another in such state, for which death a right to maintain an action to recover damages is given by the law thereof, such right may be enforced in the courts of this state. Complete Texas Statutes 1920, art. 7730½. It is the cause of action given by the law of the state in which the negligent killing occurred that our courts are authorized to enforce. The law of the place where the cause of action arose, the lex loci delictus, must determine the nature of the cause of action, and the defenses, if any, available. The case asserted must stand or fall upon that law. 12 C. J. pp. 452-454; El Paso & N. W. Ry. Co. v. McComus, 36 Tex. Civ. App. 170, 81 S. W. 760, 761 (writ refused); Thomas v. Western Union Tel. Co., 25 Tex. Civ. App. 398, 61 S. W. 501, 502 (writ refused); M. N. Ry. Co. v. Jackson, 89 Tex. 107, 113, 33 S. W. 857, 31 L. R. A. 276, 59 Am. St. Rep. 28.

It was the duty of the trial court to ascertain from the evidence the substantive law of the case in the state of Louisiana where it arose, and to give such law in charge to the jury. In the performance of this duty the court charged the jury on the subject of contributory negligence as follows:

"The law in the state of Louisiana, at the time of the death of Walter Jones,...