Lackey v. Gulf, C. & S. F. Ry. Co., 9831

• Decision Date: 07 December 1949
• Docket Number: No. 9831,9831
• Citation: 225 S.W.2d 630
• Parties: LACKEY v. GULF, C. & S. F. RY. CO.
• Court: Texas Court of Appeals

Page 630

225 S.W.2d 630

LACKEY v. GULF, C. & S. F. RY. CO.

No. 9831.

Court of Civil Appeals of Texas, Austin.

Dec. 7, 1949.

Smith & Lear, San Angelo, B. W. Smith San Angelo, for appellant.

Wigley, McLeod, Mills & Shirley, Galveston, L. B. Harris, San Angelo, Lewis Jeffrey, Amarillo, Lewis Jeffrey, Amarillo, for appellee.

HUGHES, Justice.

J. C. Lackey, appellant, sued the Gulf, Colorado & Santa Fe Railroad Company, appellee, for damages for personal injuries received by him in a collision between an engine of appellee's and a truck operated by appellant.

The trial court, when appellant rested, granted appellee's motion to withdraw the case from the jury and render judgment in its behalf.

The propriety of this action is the only question before us. The answer necessarily entails a discussion of the pleadings and evidence.

The collision occurred about 3:30 p. m., October 7, 1948, at the Magdalen Street railway crossing, between 4th and 5th Streets, in the City of San Angelo, Tom Green County, Texas. Magdalen Street runs north and south and 4th and 5th Streets run east and west, as do the railway tracks. There are three tracks at the crossing The engine was on the center or main track at the time of the collision.

Appellant was driving a 1948 G.M.C. 6-wheel truck with a 4-wheel trailer attached. The truck was equipped with hydraulic brakes and the trailer with vacuum brakes, all in good condition. The truck and trailer had an overrall length of 34 feet.

Appellant approached the scene of the collision in this manner: He was driving east on 5th Street; upon reaching Magdalen Street he stopped and then very slowly made a right turn onto Magdalen Street. The exact distance between the inside curbing where appellant made this turn and the railway tracks is not shown, but appellant testified that his trailer had not fallen into line behind his truck when the front of the truck reached the tracks on the main line where the impact occurred.

The engine which struck the truck came from the west. Appellant first saw it when it was 40 or 50 feet away. He turned the truck to the left (east) and a second or so later was hit. The engine traveled approximately 120 feet before it came to a stop.

Appellant charged the railroad with the following specific acts of negligence: (1) leaving box cars on the first track which obstructed the view to the west; (2) operating the engine at a rate of more than 15 miles per hour, in violation of a city ordinance, or operating it at such a rate of speed as to be negligent under the circumstances; (3) failure to ring a bell or blow a whistle on the engine at the time of or immediately prior to the collision, all in violation of law; (4) failure of fireman and engineer to keep a proper lookout; (5) failure in avoiding the collision after discovering the peril of appellant.

The only evidence of an obstruction to appellant's view was his testimony that there was a box car or two on the first track and about 300 feet to the west.

The only evidence of the speed of the engine was appellant's statement that it was 'running fast.'

Appellant testified outright that the bell was not ringing and the whistle was not blowing.

The only evidence of discovered period or failure to keep a proper lookout is that which may be inferred from the facts stated above.

Appellee pleaded various acts of contributory negligence on the part of appellant as a proximate cause of the collision, injuries and damage, including the allegation that appellant 'was guilty of negligence as a matter of law, in that he violated Section 86(d) of the aforesaid statute (6701d, V.A.C.S.), which...