Kypfer v. Texas & P. Ry. Co., 3281.

• Decision Date: 14 November 1935
• Docket Number: No. 3281.,3281.
• Citation: 88 S.W.2d 528
• Parties: KYPFER et al. v. TEXAS & P. RY. CO.
• Court: Texas Court of Appeals

88 S.W.2d 528

KYPFER et al. v. TEXAS & P. RY. CO.

No. 3281.

Court of Civil Appeals of Texas. El Paso.

November 14, 1935.

Rehearing Denied November 27, 1935.

Appeal from District Court, Hudspeth County; W. D. Howe, Judge.

Suit by Mrs. Henry Kypfer and husband against Texas & Pacific Railway Company. From a judgment entered on a directed verdict for defendant, plaintiffs appeal.

Affirmed.

Whitaker & Peticolas and William Craig Peticolas, all of El Paso, for appellants.

R. S. Shapard, of Dallas, and Howard & Jackson, of El Paso, for appellee.

HIGGINS, Justice.

The parents of Willie Kypfer, deceased, brought this suit against appellee to recover damages for the alleged negligent killing of their son. An instructed verdict was returned for the defendant upon its motion at the close of plaintiffs' evidence.

While riding as a guest in an automobile driven by A. H. Utley, the deceased was killed by the collision of such automobile with a stock car standing upon a spur track of appellee at Allamore station.

The automobile was traveling in an easterly direction upon the Bankhead Highway upon which the traffic was heavy at all hours. The highway at this point runs east and west. The pavement is about 19 feet wide. The highway is immediately south of and adjoins appellee's main line. The accident happened about 10 or 11 o'clock at night. There are two spur tracks leading from appellee's main line to the stock pens situate a short distance south of the highway. These spurs cross the highway diagonally and meet south of the highway. From the meeting point a single track runs to the stock pens; the spurs and single track to the pens thus forming a "wye." Just before the collision in question, several stock cars were being slowly pushed on the east spur by the engine to the stock pens to be loaded with cattle. While the spur was blocked by these slowly moving cars an automobile coming from the east struck one of the cars and injured the driver of the automobile. The automobile was tightly wedged under one of the stock cars. When this collision occurred, the string of stock cars was immediately cut and the north side of the pavement opened so that traffic could pass. The car under which the automobile was wedged was left standing upon the south half of the pavement. It extended slightly north of the pavement center line. In this manner a little more than the south half of the pavement was obstructed, but there was ample space upon the pavement for an automobile to pass to the north of the obstructing car. This was the situation when the automobile driven by Utley traveling east struck the stock car obstructing the south half of the pavement. Utley's automobile struck the car very shortly after the first collision occurred. Between 5 and 10 minutes intervened between the collisions. It is apparent from the evidence Utley was driving very rapidly, though there is no evidence to show just how fast he was traveling.

Opinion.

As to the issue of actionable negligence upon the part of the defendants, this case cannot be distinguished from Texas & N. O. R. Co. v. Stratton (Tev.Civ.App.), Texas & N. O. R. Co. v. Stratton (Tex.Civ. App.), and Texas & N. O. R. Co. v Berry (Tex.Civ.App.), reported in 74 S.W.(2d) at pages 741, 746, and 750, respectively, in all of which writs of error were refused.

And upon the issue of contributory negligence upon the part of the deceased the case cannot be distinguished from Texas Mexican Ry. Co. v. Hoy (Tex.Com.App.) 24 S.W.(2d) 18, 20 and Wichita Valley Ry. Co. v. Fite (Tex.Civ.App.) 78 S.W. (2d) 714.

Appellant's theory is that the occurrence of the first collision put the employees of defendant upon notice that the obstructed crossing was extraordinarily perilous to automobile travelers upon the highway, thus imposing upon said employees, in the exercise of ordinary care, the duty to station flagmen with lanterns upon the highway to warn travelers of the obstruction, and this was not done. In this connection cases are cited involving unusually dangerous crossings.

For quite a distance upon either side of the spur tracks the highway is straight and level. There are no obstructions whatever to interfere with the view of the crossings and approaches by travelers. The usual railroad crossing signs were upon both sides of the spurs. The cases first cited establish that the crossing here is not to be considered an unusually dangerous one. The crossing, not unusually dangerous, was not made so by the fact that a collision had just previously occurred there. But if it be conceded that under the present facts the duty did devolve upon the employees to send out flagmen with lanterns, then it was not shown a flagman was not so stationed some distance west of the crossing. In this connection appellan...