Larson v. Missouri-Kansas-Texas R. Co. of Tex.

• Decision Date: 17 December 1952
• Docket Number: MISSOURI-KANSAS-TEXAS,No. 10075,10075
• Citation: 254 S.W.2d 215
• Parties: LARSON v.R. CO. OF TEXAS.
• Court: Texas Court of Appeals

Page 215

254 S.W.2d 215

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

No. 10075.

Court of Civil Appeals of Texas, Austin.

Dec. 17, 1952.

Rehearing Denied Jan. 21, 1953.

Neilson Rogers, Sherman, by (Joe G. Rollins, Sherman, of counsel), for appellant.

G. H. Penland, Dallas, Freels & Elliott by J. S. Freels, Sherman, for appellee.

GRAY, Justice.

At about 8:30 P. M., December 26, 1950, and at the crossing of Texas Street over appellee's railroad tracks in the City of Denison, Texas, the automobile in which appellant was riding collided with one of appellee's passenger trains. Appellant sustained serious injuries and sued appellee for damages.

Texas Street runs east and west. To the west of appellee's tracks the street is hard surfaced and for a distance before reaching the tracks from the west it declines on a grade from a hill and immediately after crossing the tracks the street goes up a rise. Appellee's tracks run generally north and south, are parallel with and east of the Texas and Pacific Railroad tracks. Texas Street passes over the Texas and Pacific tracks by way of an arched or 'humped' wooden bridge thrity-one feet wide and sixty feet long. The Texas and Pacific trains pass through a cut and under this bridge. The traffic along Texas Street passes over this bridge and crosses appellee's tracks which are not covered by a bridge or overpass. It is about nine feet from the west rail of appellee's tracks to the wooden bridge.

On the night in question the weather and streets were dry, there was a strong north wind blowing, it was cold and the night was dark. Appellant was riding in an automobile driven by her son-in-law, George Welch. The front seat of the automobile was occupied by the driver, his wife, sitting in the middle and appellant sitting on the right side. Appellant's two small sons, age six and eight years, were on the back seat. Another son was in Maddona Hospital in Denison. The parties left appellant's home, in Denison, at about eight o'clock P. M., and were going to the hospital to visit the son there. Also appellant expected to remain at the hospital where she worked and was due to go on duty at eleven o'clock P. M.

Appellant alleged that appellee was negligent in various respects and that each act of negligence was a proximate cause of her injuries. Appellee answered and alleged that both appellant and the driver of the automobile were familiar with the crossing in question; alleged that appellant and said driver were negligent in numerous respects; alleged that they violated Art. 6701d, Sec. 86, Vernon's Ann.Civ.Stat., and further that the collision in question was, as to it, an unavoidable accident.

Upon a jury trial, the jury, in answer to special issues, exonerated appellant and the driver of the automobile of negligence, convicted appellee of negligence, and found that the collision was not the result of an unavoidable accident. Among other findings the jury found that the crossing was extraordinarily hazardous; that appellee failed to maintain a signaling device or a flagman at the crossing and that the train was being propelled at a speed in excess of twenty miles per hour (appellant having alleged that appellee violated an ordinance of the City of Denison making it unlawful to operate a railway train within the city limits at a speed greater than twenty miles per hour). The jury further found that the train was being operated at a high an excessive rate of speed under the circumstances; that these and other acts of appellee were each negligence, and each such act was a proximate cause of appellant's injuries. The jury also found that as the train approached the crossing the bell on the engine was rung; that the whistle was blown, and that the 'Mars' headlight was burning, and further found that appellant did not fail to keep a proper lookout for the train; that she failed to caution the driver of the automobile to keep a proper lookout, but that such failure was not negligence.

The trial court denied appellant's motion for judgment, and granted appellee's motion for judgment non obstante veredicto.

Just prior to the collision the automobile was approaching the crossing, from the west, at about 20 or 25 miles per hour; the windshield was clear, the headlights were burning and the brakes were in proper condition. There were houses along the south side of Texas Street, the narest of which to appellee's tracks was located as being ninety-six feet west from appellee's west rail, twenty-seven feet west from the west side or end of the wooden bridge and thirty-seven feet south from the south curb line of Texas Street.

The driver of the automobile said that he could stop it in twenty-five or thirty feet at the rate he was driving and that the front wheels of the automobile were probably on the wooden bridge when he got his foot on the brakes. He said that up until the time of the collision he had not 'become familiar' with the crossing, but on cross examination he said he knew there was a crossing there, and more than once, said that as he approached the crossing he looked to the north and to the south. He said:

'* * * just as I got on the west end of the bridge there was a light that blinded me, and I started to applying my brakes and trying to bring my car to a complete stop just as soon as I possibly could but I got on my brakes and I just didn't see the train in time to stop.

'Q Where was the train when the light of it blinded you? A Well, approximately about 100 feet-it could have been more or it could have been less-from the crossing.

'Q South of the crossing? A Yes, sir.

'Q Did you apply your brakes? A Yes, sir.

'Q Did your car slow down? A Yes, sir.

'Q Did it stop before it got to the tracks? A No, sir.

'Q Had the engine passed you by the time you had slowed your car down to 5 miles an hour or less? A Yes, sir.

'Q What part of the train, from your best recollection, did you collide with? A I thought I hit right behind the engine, to the best of my recollection.

'A No, sir, I am not saying I couldn't see it. (the train)

'Q Could you have seen it before you got on the bridge? A Just a few feet.

'Q That's all you needed, wasn't it? A Yes, sir.

'Q * * * Now, you knew there was a railroad crossing there. Is that correct? A Yes, sir. I knew there was a crossing there.'

Appellant said she did not drive an automobile, had never driven, and that she had no control over the operation of the automobile on the night in question. She said:

'* * * As nearly as I can recall it, the crossing is visible approximately a block west of the crossing. I knew it was there. And I presumed my son-in-law knew it was there. * * *

'Q On this particular occasion, Mrs. Larson-A On this particular occasion I don't remember anything of any conversation. There was nothing at all unusual about the trip, nothing that I can remember and specifically say occurred, until I looked up and saw that we were going to hit a train.

'Q Did you look down the road any as you came down the hill? A Oh, yes.

'Q Was there a train there when you looked? A No, sir.

'Q. Do you know where your car was when you saw the train? A I have no idea. Somewhere very near, near enough that I knew that we were going to hit it.'

Mrs. George Welch said:

'Q When was the first time you saw the train, Mrs. Welch? A Just a split second before we hit it.

'Q What, if anything, did you observe of it? A All I could see was just the flash of the train, of the silver and red, I believe it was, just before we hit.

'Q Both you and your husband knew about that railroad crossing at the bottom of the hill, did you not? A I knew of it, yes, sir.

'Q And he knew of it, too, didn't he? A I imagine so.

'Q He had crossed it before with you, hand't he? A I don't. I imagine he had.

'Q You knew from your experience, living there by the tracks a few blocks, and passing it going to town, as well as driving over it with your husband, didn't you? A Yes, sir, I knew the crossing.'

George Welch, the driver, was the first to see the train or its light, and he said he did not see it until he was on...