Kincaid v. Chicago, R. I. & G. Ry. Co.

• Decision Date: 21 May 1938
• Docket Number: No. 12345.,12345.
• Citation: 119 S.W.2d 1084
• Parties: KINCAID v. CHICAGO, R. I. & G. RY CO. et al.
• Court: Texas Court of Appeals

119 S.W.2d 1084

KINCAID v. CHICAGO, R. I. & G. RY CO. et al.

No. 12345.

Court of Civil Appeals of Texas. Dallas.

May 21, 1938.

Rehearing Denied September 24, 1938.

Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.

Action by Velma Kincaid and another against the Chicago, Rock Island & Gulf Railway Company and others, to recover for the death of the son and husband of plaintiffs which occurred when deceased's truck collided with concrete signal block. From an adverse judgment, the named plaintiff appeals.

Affirmed.

White & Yarborough, of Dallas, for appellant.

Allen & Gambill, of Fort Worth, and Burford, Ryburn, Hineks & Charlton and R. G. Scurry, all of Dallas, for appellees.

YOUNG, Justice.

Plaintiffs, Velma Kincaid and Mrs. Willie Fleming, wife and mother respectively of Horace Kincaid, brought this damage suit in the trial court for the latter's death, which occurred October 5, 1933. Defendants were the Chicago, Rock Island & Gulf Railway Company and Frank O. Lowden, James E. Gorman and Joseph B. Fleming, trustees thereof, termed herein "Rock Island", and the St. Louis, San Francisco & Texas Railway Company, referred to for all purposes as the "Frisco".

Horace Kincaid was killed between midnight and 2:00 o'clock A. M. on said date, when he drove his truck against a large concrete signal block located in the center of the Northwest Highway in Dallas County, such paved road at this point running substantially east and west. The Rock Island intersected the highway almost at a right angle, its line running generally north and south. The highway approach to the crossing from the east (the direction from which Kincaid was traveling), back approximately two miles, was straight, with very slight variation of grade. The normal width of the highway was 20 feet until about 200 or 300 feet from the crossing, when it began to widen and reach a width of 30 feet approximately 100 feet from the railway line, maintaining this 30 foot width until 100 feet beyond the crossing, when it again narrowed down to 20 feet. At least two sets of diagonal strips of asphalt were set in the concrete pavement of the highway, beginning about 100 feet from either side of the crossing and situated on the right-hand side of the pavement as one approached the intersection. A railway crossing sign was located on the right-hand side of the highway about 300 feet east of the crossing, or from the direction the Kincaid truck had been approaching. The signal device or concrete block with which deceased collided consisted of upright posts, set in concrete in the center of the highway, one on each side of the railway, and about 17 feet from the center line thereof. These signal blocks were oval or egg shaped, six feet in length with the highway, and four feet across. The concrete base was approximately two feet high and originally painted with oblong black stripes. The upright posts were about ten feet high and supported two yellow lights, burning oil, one on each side of the posts, about 30 inches apart and some 4½ feet above the pavement. Higher on these upright posts were mechanically operated electric lights, which flashed red on approach of trains. At the top of each post was a bell and cross-arm, with the words "railroad crossing", the posts being painted in black stripes.

On the occasion in question, Kincaid was traveling westward along said highway in a Chevrolet truck, heavily loaded with binder twine, which he was hauling from Houston to Floydada, Texas. The left front and wheel of the truck struck the above described concrete block on the east side of the crossing, Kincaid being instantly killed from the force of the impact.

The railway line was owned by the Rock Island and its present trustees in bankruptcy, and sometime after the erection of these signal posts was, by its said owners, leased to the defendant Frisco, and was being operated and used by the latter railway company at the time of the collision. The Rock Island had constructed the concrete block at its location on the highway with the consent of the State Highway Department, under an agreement that the latter would reimburse the Rock Island for the cost of construction.

Plaintiffs alleged many grounds of liability as to each defendant, who first filed separate pleas in abatement, urging misjoinder; the plea of the Frisco alleging the device in question, having been erected by the Rock Island, such lessee had no authority or control over it, and was therefore not responsible for the existence or maintenance of the device, and that any claims arising out of the facts and circumstances were solely against the Rock Island. Other allegations touching the relationship of the defendants as to the signal block and of the contributory negligence of deceased Kincaid, were made by defendants in separate answers. In response to 73 special issues, the jury found against the plaintiffs and in favor of both defendants on the majority of the issues as to primary negligence, including the issue of whether the device constituted an obstruction to the highway at the intersection. Two primary issues constituting negligence and proximate cause were found against the Rock Island, to-wit: (1) Its failure to remove the concrete block after knowledge that its presence created a dangerous condition in the highway, and (2) in permitting the concrete block to remain on the Northwest Highway at the place in question, after being warned of the hazard and danger connected therewith; and liability against the defendant Frisco solely upon the first of the two issues just detailed. Deceased Kincaid was found guilty of negligence proximately causing his injuries and death in four particulars: (1) As to the rate of speed at which he was traveling; (2) in failing to keep a lookout for the railroad crossing sign; (3) in failing to keep a lookout for the signal device on the east side of the crossing; and (4) in failing to keep a lookout for the railroad crossing. Damages were assessed in favor of plaintiff Velma Kincaid, for $8000. The motions of defendants for judgment were sustained, those of plaintiffs overruled, and judgment rendered that plaintiffs take nothing, from which the wife of deceased, Velma Kincaid only, has appealed.

The grounds upon which plaintiff (appellant) bases this appeal may be briefly summarized: (1) Error of the trial court in allowing the defendants 12 peremptory challenges to the jury panel, whereas they were only entitled to six; (2) that the defendants had constructed and maintained an obstruction in a public highway which, in law, was a nuisance, and defendants were liable in damages resulting therefrom, irrespective of contributory negligence of Kincaid; (3) alleged error of the trial court in refusing to admit in evidence a letter from the Texas Highway Department to one of the defendants; (4) improper submission of special issues, inflammatory argument on the part of defendants' counsel, and alleged misconduct of the jury in their deliberations.

We conclude there was no error in allowing each defendant the usual number of peremptory challenges as separate parties, under Art. 2148, R.S. Under the pleadings of plaintiffs, and testimony, the court's charge contained issues as to the liability of the Rock Island, in the construction and maintenance of the crossing and signal block, followed by issues as to the maintenance thereof by the Frisco. Joint, as well as several, acts of negligence were asserted, and it is manifest from the pleadings of the defendants that each claimed to be in no wise negligent or responsible. In the Frisco's plea in abatement were allegations of misjoinder of parties and causes of action—in that, undisputedly, the alleged obstruction was erected by the Rock Island, with which the Frisco had nothing to do, nor was it accountable for the existence, maintenance or removal of the same, under the agreement, letters, notices, etc. between the Rock Island and the Texas Highway Department concerning the location and continuance of the device. The answer of this defendant contained similar allegations, the effect of same being that the Frisco was in no particular at fault, and that liability for the accident was upon persons or parties other than itself. Obviously the jury could have answered the issues so as to acquit one of the defendants of negligence, holding the other responsible. We think plaintiffs' propositions as to the above are ruled by the statement from 26 Tex.Jur. (Jury) sec. 101, citing cases, that "Antagonism of interest, however, entitles co-parties to separate sets of challenges. Their hostility sufficiently appears where each defendant claims that the other is alone responsible to the plaintiff * * *". See St. Louis, S. F. & T. Ry. Co. v. Rutland, Tex.Com.App., 292 S.W. 182, quite similar in facts, where separate challenges were upheld. Further, the bill of exceptions fails to show the acceptance of any objectionable jurors, by reason...